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States' Rights, Welfare Rights, and the “Indian Problem”: Negotiating Citizenship and Sovereignty, 1935–1954

Published online by Cambridge University Press:  10 December 2014

Extract

“What distinguishes the American Indians from other native groups is . . . the nature of their relationship with a government which, while protecting their welfare and their rights, is committed to the principles of tribal self-government and the legal equality of races.”

  • Felix S. Cohen, Chairman, Board of Appeals, United States Department of Interior (1942)

“[T]he objective of Congress is to make the Indians self-supporting and into good individual American citizens . . . . You cannot have a good American citizen . . . unless you have a good citizen of the State.”

  • United States Representative Antonio M. Fernández (D., New Mexico) (1949)

“While all this red tape is being untangled, one in need dies without assistance.”

  • David A. Johnson, Sr., Governor and Chairman of the Gila River Pima-Maricopa Indian Community (1949)

These three quotations come from a period in modern American history often remembered for economic depression and war, but perhaps most remarkable for the accompanying changes in governance. Building on Progressive Era innovations, America's federal system became ever more “cooperative”— that is, marked by intricate federal-state personnel and revenue sharing. Meanwhile, Americans witnessed the steady expansion of central state authority. By the 1940s, neither the states nor the federal government enjoyed many areas of exclusive jurisdiction. The federal and state governments' relationships with their subjects were similarly in flux, and the stakes were high. As a result of New Deal social welfare programs, as well as numerous war-related measures, the benefits of state and national citizenship had expanded by the late 1940s. The burdens of citizenship had expanded, too, in the form of higher and broader taxation, compulsory military service, and more government oversight. The stage was set for fierce conflicts over the borders of the nation's political communities and the terms of belonging.


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Copyright © the American Society for Legal History, Inc. 2014 

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References

1. Cohen, Felix S., “The Spanish Origins of Indian Rights in the Law of the United States,” Georgetown Law Journal 31 (1942): 21Google Scholar.

2. House Committee on Public Lands, Hearings before a Subcommittee on Indian Affairs of the Committee on Public Lands on H.R. 3476: A Bill to Promote the Rehabilitation of the Navajo and Hopi Indians under a Long-range Program, 81st Cong., 1st sess., 1949, 202–4.

3. David A. Johnson, Sr., to Oliver La Farge, January 19, 1949, Box 120, Records of the National Congress of American Indians (National Museum of the American Indian Archive Center, Suitland) (hereafter NCAI).

4. States and localities maintained control of education, for example, and the federal government claimed control of national defense, but even these involved some degree of cooperation. On “cooperative” federalism, see note 9 (on “new federalism”); see also Key, V. O. Jr., The Administration of Federal Grants to States (Chicago: Public Administration Service, 1937)Google Scholar; Corwin, Edward S., “The Passing of Dual Federalism,” Virginia Law Review 36 (1950): 124CrossRefGoogle Scholar; and Elazar, Daniel J., American Federalism: A View from the States (New York: Harper and Row, 1984)Google Scholar.

5. See Mettler, Suzanne, Dividing Citizens: Gender and Federalism in New Deal Public Policy (Ithaca: Cornell University Press, 1998)Google Scholar; Jacobs, Meg, Pocketbook Politics: Economic Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2007)CrossRefGoogle Scholar; Sparrow, James T., Warfare State: World War II Americans and the Age of Big Government (New York: Oxford University Press, 2011)Google Scholar; and Michelmore, Molly C., Tax and Spend: The Welfare State, Tax Politics, and the Limits of American Liberalism (Philadelphia: University of Pennsylvania Press, 2012)CrossRefGoogle Scholar.

6. Wherever possible, I refer to indigenous persons by the names of their specific indigenous communities. When referring to indigenous people as a collective, I use the terms “American Indian” and “Indian,” which “remain the most common appellations used by indigenous and nonindigenous persons and institutions.” Wilkins, David E. and Stark, Heidi Kiiwetinepinesiik, American Indian Politics and the American Political System, 3d ed. (Plymouth, UK: Rowman & Littlefield Publishers, 2011)Google Scholar, xvii. I prefer “American Indian” to the more generic but arguably more innocuous “Native American” because I do not wish to efface the complicated history of war, colonization, and intragovernmental agreements that many indigenous people consider central to their identities. See, for example, Russell Means, “I Am an American Indian, Not a Native American!” (T.R.E.A.T.Y. Productions, 1996) http://compusci.com/indian/ (April 25, 2014); Christina Berry, “What's in a Name? Indians and Political Correctness,” All Things Cherokee http://www.allthingscherokee.com/articles_culture_events_070101.html (April 25, 2014).

7. On “Sunbelt conservatism,” see Lassiter, Matthew D., The Silent Majority: Suburban Politics in the Sunbelt South (Princeton: Princeton University Press, 2006)Google Scholar; Nickerson, Michelle and Dochuk, Darren, eds., Sunbelt Rising: The Politics of Space, Place, and Region (Philadelphia: University of Pennsylvania Press, 2011)CrossRefGoogle Scholar; and Shermer, Elizabeth Tandy, Sunbelt Capitalism: Phoenix and the Transformation of American Politics (Philadelphia: University of Pennsylvania Press, 2013)CrossRefGoogle Scholar. Seeking federal dollars while rejecting federal control is a theme of Western regional history more generally. See White, Richard, “It's Your Misfortune and None of My Own”: A New History of the American West (Norman: University of Oklahoma Press, 1991)Google Scholar; and Nash, Gerald D., The American West Transformed: The Impact of the Second World War (Lincoln: University of Nebraska Press, 1990)Google Scholar.

8. See note 31.

9. Political scientist Jane Perry Clark inaugrated the term “new federalism” in 1938, in the midst of the New Deal and in the wake of decades of progressive reform. Clark, Jane Perry, The Rise of a New Federalism: Federal-State Cooperation in the United States (New York: Columbia University Press, 1938)Google Scholar. Legal scholars often use the term to describe the Rehnquist Court's federalism jurisprudence, but historians and political scientists continue to associate it with “the uneasy period when the United States was precariously balanced between a continued dual federal system and a centralized modern state.” Johnson, Kimberley S., Governing the American State: Congress and the New Federalism, 1877–1929 (Princeton: Princeton University Press, 2007), 4CrossRefGoogle Scholar. For analytical purposes, Johnson distinguishes “New Federalism” from “New Deal federalism,” but she recognizes that the latter grew directly from the former. Ibid; see also Scheiber, Harry N., “American Federalism and the Diffusion of Power: Historical and Contemporary Perspectives,” Toledo Law Review 9 (1978): 646Google Scholar (describing the New Deal era in “new federalism” terms).

10. Parrish, Michael E., “The Great Depression, the New Deal, and the American Legal Order,” Washington Law Review 59 (1984): 727Google Scholar.

11. Complaint, Mapatis v. Ewing (D.D.C. 1948), Box 332, Association on American Indian Affairs Records (Mudd Manuscript Library, Princeton University, Princeton) (hereafter AAIA). On termination, see Philp, Kenneth R., Termination Revisited: American Indians on the Trail to Self-Determination, 1933–1953 (Lincoln: University of Nebraska Press, 1999)Google Scholar.

12. I borrow this term, a conceptualization of citizenship, from Welke, Barbara Young, Law and the Borders of Belonging in the Long Nineteenth Century United States (New York: Cambridge University Press, 2010)CrossRefGoogle Scholar.

13. Federal officials derived these estimates from assumptions on which state officials agreed. Arthur Altmeyer to Murray A. Hintz, October 16, 1948, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, Office of the General Counsel, General Records of the Department of Health, Education, and Welfare, RG 235 (National Archives, College Park) (hereafter GC-DHEW); Arthur Altmeyer to Carl Hayden, September 3, 1948, Box 36, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and Social Security and Other Income,” Social Security Bulletin 11 (1948): 54Google Scholar. To put these figures in perspective, Arizona spent approximately $60,000 of its own money on “general relief” (a catchall category for poor citizens who failed to qualify for one of the federally subsidized programs) in a single month in 1948; New Mexico spent roughly $40,000. The cost of including reservation Indians was, therefore, not trivial, but it paled in comparison to the amount that the states were willing to spend on public welfare more generally (Council of State Governments, Federal Grants-in-Aid [Chicago: Council of State Governments, 1949]).

14. On contemporaneous NAACP lawsuits, see Tushnet, Mark V., The NAACP's Legal Strategy against Segregated Education, 1925–1950 (Chapel Hill: University of North Carolina Press, 1987)CrossRefGoogle Scholar; Brown–Nagin, Tomiko, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (New York: Oxford University Press, 2011)CrossRefGoogle Scholar. On the legal aspects of the welfare rights movement, see Davis, Martha F., Brutal Need: Lawyers and the Welfare Rights Movement, 1960–1973 (New Haven: Yale University Press, 1993)Google Scholar; and Kornbluh, Felicia Ann, The Battle for Welfare Rights: Politics and Poverty in Modern America (Philadelphia: University of Pennsylvania Press, 2007)Google Scholar.

15. I do not mean to imply that the Mapatis litigation was novel in this regard. Historians have begun to recognize that many civil rights litigants were primarily interested in enforcing, as opposed to reforming, existing laws. See, for example, Shepard, Kris, Rationing Justice: Poverty Lawyers and Poor People in the Deep South (Baton Rouge: Louisiana State University Press, 2007)Google Scholar; and MacLean, Nancy, Freedom Is Not Enough: The Opening of the American Workplace (New York: Russell Sage Foundation, 2006)Google ScholarPubMed.

16. “Garvey Asks State Refuse Indian Relief,” Tucson Daily Citizen, September 13, 1948 p. 1.

17. To my knowledge, the only scholar to have discussed the dispute in some depth is Deanna Lyter. Her dissertation in sociology places the case in the context of “how . . . the dominant society's construction of race, class, and gender shape[d] the exclusion of White Mountain Apache women as they encountered Arizona's Aid to Dependent Children program.” Deanna M. Lyter, “Domination, Regulation, and Resistance: The Impact of Aid to Dependent Children and Tribal Law on White Mountain Apache Women, 1934–1960” (PhD diss., American University, 2002), 2, 91–114. For briefer Native Studies discussions of the case, see Cowger, Thomas W., The National Congress of American Indians: The Founding Years (Lincoln: University of Nebraska Press, 1999), 67Google Scholar; Philp, Termination Revisited, 59–60.

18. See, for example, Wilkinson, Charles, Blood Struggle: The Rise of Modern Indian Nations (New York: W.W. Norton & Co., 2009)Google Scholar.

19. “Deadliest enemies” is from United States v. Kagama, 118 U.S. 375, 384 (1886). That some American Indians in the Southwest fought for inclusion in the termination era, bucking the broader trend, is perhaps unsurprising. It is in the Southwest that states most determinedly resisted extending the right to vote and other markers of belonging. See note 69.

20. Arizona v. Hobby, 221 F.2d 498 (D.C. Cir. 1954).

21. Hoxie, Frederick E., “What Was Taney Thinking? American Indian Citizenship in the Era of Dred Scott,” Chicago-Kent Law Review 82 (2007): 329–59Google Scholar. These bargains, it should be noted, depended upon a historically specific understanding of state sovereignty. Starting in approximately1820, Lisa Ford has argued, sovereignty came to depend on the ability to “order[] . . . indigenous people in space”––to assert territorial jurisdiction over their property and bodies. Ford, Lisa, Settler Sovereignty: Jurisdiction and Indigenous People in America and Australia, 1788–1836 (Cambridge, MA: Harvard University Press, 2010), 14Google Scholar.

22. See, for example, Piven, Frances Fox and Cloward's, Richard influential Regulating the Poor: The Functions of Public Welfare (New York: Pantheon Books, 1971)Google Scholar; see also Katz, Michael B., In the Shadow of the Poorhouse: A Social History of Welfare in America (New York: Basic Books, 1986)Google Scholar; and Lieberman, Robert C., Shifting the Color Line: Race and the American Welfare State (Cambridge, MA: Harvard University Press, 1998)Google Scholar.

23. On the limited reach of state law on Indian reservations, see Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). Note, however, however, that for much of United States history, states succeeded in subjecting Indians to their laws, especially in the Southeast. Ford, Settler Sovereignty; Rosen, Deborah, American Indians and State Law: Sovereignty, Race, and Citizenship, 1790–1880 (Lincoln: University of Nebraska Press, 2007)CrossRefGoogle Scholar.

24. On the disruptive power of people who are legal “impossibilities,” see Ngai, Mae M., Impossible Subjects: Illegal Aliens and the Making of Modern America (Princeton: Princeton University Press, 2004)Google Scholar. On “layered sovereignty,” a term most often used in histories of empire, see Benton, Lauren, A Search for Sovereignty: Law and Geography in European Empires, 1400–1900 (New York: Cambridge University Press, 2010), 3132Google Scholar.

25. On termination, see Philp, Termination Revisited; and Fixico, Donald Lee, Termination and Relocation: Federal Indian Policy, 1945–1960 (Albuquerque: University of New Mexico Press, 1986)Google Scholar. On American Indian activism in the 1960s, see Shreve, Bradley G., Red Power Rising: The National Indian Youth Council and the Origins of Native Activism (Norman: University of Oklahoma Press, 2011)Google Scholar.

26. On the emergence in the late 1940s and 1950s of intense state-level concern about New Deal public assistance programs, see Reese, Ellen, Backlash against Welfare Mothers: Past and Present (Los Angeles and Berkeley: University of California Press, 2005)Google Scholar; Michelmore, Tax and Spend. For the commonly voiced view that states controlled New Deal public assistance, see, for example, Mettler, Dividing Citizens; and Lieberman, Shifting the Color Line.

27. On “uncooperative” and “opportunistic” federalism, see Bulman–Pozen, Jessica and Gerken, Heather K., “Uncooperative Federalism,” Yale Law Journal 118 (2009): 12561310Google Scholar; and Conlon, Tim, “From Cooperative to Opportunistic Federalism: Reflections on the Half-Century Anniversary of the Commission on Intergovernmental Relations,” Public Administration Review 66 (2006): 663–76CrossRefGoogle Scholar.

28. On the “New Deal order” and its collapse by the 1980s, see Fraser, Steve and Gerstle, Gary, eds., The Rise and Fall of the New Deal Order (Princeton: Princeton University Press, 1989)Google Scholar. Political scientist Margaret Weir has recently questioned the use of the term “New Deal order” because it “implies a relatively coherent political configuration” and privileges “the development of national political processes and political forms,” it hinders scholars from recognizing the United States as having “a layered polity in which federal initiatives were overlaid on state political systems that operated with different administrative capacities and political logics.” Weir, Margaret, “States, Race, and the Decline of New Deal Liberalism,” American Political Development 19 (2005): 157–58Google Scholar. Like Fraser and Gerstle, I employ the term “New Deal order” to refer to a particularly influential set of “ideas, public policies, and political alliances.” In Jennifer Klein's apt summary, “the New Deal Order . . . encompasses or designates particular political coalitions brought under a dominant Democratic Party, expanded citizenship rights, Keynesian economic policymaking, rising standards of living through collective bargaining and public investment, checks on the prerogatives of business, and working-class enfranchisement.” Fraser and Gerstle, The Rise and Fall of the New Deal Oder, ix; and Klein, Jennifer, “A New Deal Restoration: Individuals, Communities, and the Long Struggle for the Collective Good,” International Labor and Working-Class History 74 (2008): 42CrossRefGoogle Scholar. I join Weir's efforts, however, to uncover the neglected role of the states in shaping the trajectory of New Deal reforms.

29. On the history of federalism, see, for example, Scheiber, Harry N., “Federalism and Legal Process: Historical and Contemporary Analysis of the American System,” Law and Society Review 14 (1979): 633722Google Scholar; Riker, William H., The Development of American Federalism (Boston: Springer, 1987)CrossRefGoogle Scholar; and Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996)Google Scholar. On “new federalism” and “cooperative federalism,” see notes 4 and 9.

30. Goldberg, Cecile, “Development of Federal Grant Allocations,” Social Security Bulletin 10 (1947): 34Google Scholar; and Bigge, George E., “Federal Grants-in-Aid: A Bulwark of State Government,” Social Security Bulletin 13 (1950): 3Google Scholar.

31. Public Law 271, 74th Cong., 1st sess. (August 14, 1935). On the administration of the Act, see Lansdale, Robert T., Long, Elizabeth, Leisy, Agnes, and Hipple, Byron T., The Administration of Old Age Assistance (Chicago: Public Administration Service, 1939)Google Scholar; Derthick, Martha, The Influence of Federal Grants: Public Assistance in Massachusetts (Cambridge, MA: Harvard University Press, 1970)CrossRefGoogle Scholar; and Coll, Blanche D., Safety Net: Welfare and Social Security, 1929–1979 (New Brunswick: Rutgers University Press, 1995)Google Scholar.

32. Bigge, “Federal Grants-in-Aid”; Council of State Governments, Federal Grants-in-Aid, 152; Coll, Safety Net; Patterson, James T., The New Deal and the States: Federalism in Transition (Princeton: Princeton University Press, 1969)CrossRefGoogle Scholar; Karen M. Tani, “Securing a Right to Welfare: Public Assistance Administration and the Rule of Law, 1935–1965” (PhD diss., University of Pennsylvania, 2011).

33. Ablavsky, Gregory, “The Savage Constitution,” Duke Law Journal 63 (2014): 9991089Google Scholar.

34. Harring, Sidney, Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (New York: Cambridge University Press, 1994)CrossRefGoogle Scholar.

35. Gómez, Laura E., Manifest Destinies: The Making of the Mexican American Race (New York: New York University Press, 2007), 9098Google Scholar; and United States v. Sandoval, 231 U.S. 28 (1913).

36. An Act to Grant Citizenship to Indians, Public Law 175, 68th Cong., 1st sess. (June 2, 1924); and Deloria, Vine Jr., Behind the Trail of Broken Treaties: An Indian Declaration of Independence (Austin: University of Texas Press, 1984), 18Google Scholar.

37. W. David Owl, “What the Indians Want from the Government,” in Proceedings of the National Conference on Social Welfare (Chicago: University of Chicago Press [1930], 625, 630).

38. Lewis Meriam, “State and Local Cooperation with the National Government in Social and Educational Work for Indians: Statement of the Problem,” in Proceedings of the National Conference on Social Welfare, University of Chicago Press, Chicago, 1931, 609–11; and Meriam, Lewis, The Problem of Indian Administration (Baltimore: Johns Hopkins Press, 1928)Google Scholar. For earlier invocations of the “Indian problem,” see, for example, Hayes, Robert G., A Race at Bay: New York Times Editorials on “the Indian Problem,” 1860–1900 (Carbondale and Edwardsville: Southern Illinois University Press, 1997)Google Scholar.

39. For an overview of the historical literature on American Indians' entanglement in federal-state power struggles, see McMillen, Christian, “Native Americans,” in A Companion to American Legal History, ed. Hadden, Sally E. and Brophy, Alfred L. (West Sussex, UK: Wiley-Blackwell, 2013), 127–51Google Scholar. I use the term “Bureau of Indian Affairs” (BIA) to refer to the agency that has at other times been known as the Indian Service, the Indian Department, and the Office of Indian Affairs. Originally part of the War Department, the BIA was transferred in 1824 to the Department of the Interior, where it has remained.

40. The Social Security Board, originally an independent agency, later became the Social Security Administration and was placed under the “umbrella” of the Federal Security Agency. In 1953, the social welfare agencies under this umbrella were reorganized as the Department of Health, Education, and Welfare. I use the term “Social Security Board” throughout. On the precarious and controversial position of federal agencies in American governance in the 1930s, see Grisinger, Joanna L., The Unwieldy American State: Administrative Politics since the New Deal (New York: Oxford University Press, 2012)CrossRefGoogle Scholar.

41. A. Delafield Smith to Geoffrey May, December 20, 1939, Box 92, Office of the Commissioner, Chairman's Files, Records of the Social Security Board, RG 47 (National Archives, College Park) (hereafter SSB). Labor Secretary Frances Perkins, chair of the committee that drafted the law, reportedly told BIA officials that it was unnecessary to insert language specifically including Indians. However, at least one Senator, Peter Norbeck (R., South Dakota), contended that the draft legislation “entirely overlooked” Indians; he suggested adding an “Indian Pensions” title. Norbeck's proposal disappeared from the record without comment. William Zimmerman, Jr., to Frank Bane, January 1, 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Congressional Record, 74th Cong., 1st sess. (June 17, 1935): 9437; and Congressional Record, 74th Cong., 1st sess. (June 18, 1935): 9540–41.

42. McDonnell, Janet A., Dispossession of the American Indian, 1887–1934 (Bloomington: Indiana University Press, 1991)Google Scholar; Hoxie, Frederick E., A Final Promise: The Campaign to Assimilate the Indians, 1880–1920 (Lincoln: University of Nebraska Press, 2001)Google Scholar; Kelly, Lawrence C., The Assault on Assimilation: John Collier and the Origins of Indian Policy Reform (Albuquerque: University of New Mexico Press, 1983)Google Scholar; Philp, Kenneth R., John Collier's Crusade for Indian Reform, 1920–1954 (Tucson: University of Arizona Press, 1977)Google Scholar; Taylor, Graham D., The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–45 (Lincoln: University of Nebraska Press, 1980)Google Scholar; and Prucha, Francis Paul, The Great Father: The United States Government and the American Indians (Lincoln: University of Nebraska Press, 1986), 333–36Google Scholar.

43. Samuel Gerson, “Federal and State Relations in Indian Relief,” in Proceedings of the National Conference on Social Welfare, (Chicago: University of Chicago Press, 1935), 589, 591–92; Sue S. White, memorandum, April 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and Arthur Altmeyer to Sue White, March 24, 1936, Box 92, Office of the Commissioner, Chairman's Files, SSB.

44. Sue White to Thomas H. Eliot, February 2, 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. White cited no legal authority for her position, and her confidence on this point is curious. In 1936, the Supreme Court had yet to adopt strict scrutiny for classifications based on immutable traits, and existing precedents treated racial segregation as consistent with the Fourteenth Amendment. On White and her path to the Social Security Board, see Tani, Karen M., “Portia's Deal,” Chicago-Kent Law Review 87 (2012): 549–70Google Scholar. On the status of equal protection doctrine at this moment, see Nourse, Victoria F. and Mcguire, Sarah, “The Lost History of Governance and Equal Protection,” Duke Law Journal 58 (2009): 9551012Google Scholar.

45. Sue S. White to Thomas H. Eliot, February 11, 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. White feared that critics might accuse the Board of overstepping its bounds, by assuming the judiciary's role. On the prevalence of this critique, see White, G. Edward, The Constitution and the New Deal (Cambridge, MA: Harvard University Press, 2000), 96103Google Scholar.

46. For Board statements, see John Winant to Benjamin Ross, April 3, 1936, Box 92, Office of the Commissioner, Chairman's Files, SSB; John Winant to William Zimmerman, Jr., April 11, 1936, Box 92, Office of the Commissioner, Chairman's Files, SSB; and Frank Bane to Carl Hayden, November 21, 1936, Box 92, Office of the Commissioner, Chairman's Files, SSB. On the BIA's interpretation, see Nathan R. Margold, memorandum, April 22, 1938, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; William Zimmerman, Jr., to H. A.Willson, June 23, 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and John Collier to Royal L. Mann, May 8, 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. Unsuccessful lawsuits in two states, Montana and Minnesota, supported the Board's position. A. Delafield Smith to Alice P. Stanton, February 3, 1944, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and Jack Tate to Paul McNutt, January 14, 1941, Box 12, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

47. Frank Bane to Carl Hayden, November 24, 1936, Box 92, Office of the Commissioner, Chairman's Files, SSB; and Sue S. White to Thomas H. Eliot, February 27, 1936, Box 10, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. This is not to say that Indian applicants were always treated equally. Federal administrators documented inequities in grant amounts, as well as resistance from some county-level officials. Jane Hoey to Oscar M. Powell, June 1, 1940, Box 92, Office of the Commissioner, Chairman's Files, SSB.

48. Meeks, Eric V., Border Citizens: The Making of Indians, Mexicans, and Anglos in Arizona (Austin: University of Texas Press, 2007), 3642Google Scholar; and Mitchell, Pablo, Coyote Nation: Sexuality, Race, and Conquest in Modernizing New Mexico, 1880–1920 (Chicago: University of Chicago Press, 2005), 1618CrossRefGoogle Scholar.

49. United States Department of Commerce, The Indian Population of the United States and Alaska 1930, Volume I (Washington, D.C.: Government Printing Office, 1937), 35Google Scholar; Baird, W. David, “Are the Five Tribes of Oklahoma ‘Real’ Indians?Western Historical Quarterly 21 (1990): 518CrossRefGoogle Scholar; and Lewis Meriam, “The Indian Problem: A Challenge to American Capacity for Social Service,” in Proceedings of the National Conference on Social Welfare (Chicago: Chicago University Press, 1929), 550.

50. The Navajos' painful experience with the federal livestock reduction program has been well documented, as has the tribe's subsequent rejection of the Indian Reorganization Act. See Weisiger, Marsha, Dreaming of Sheep in Navajo Country (Seattle: University of Washington Press, 2009)Google Scholar; and Iverson, Peter, Diné: A History of the Navajos (Albuquerque: University of New Mexico Press, 2002), 137–60Google Scholar.

51. See, for example, Wenger, Tisa, “Land, Culture, and Sovereignty in the Pueblo Dance Controversy,” Journal of the Southwest 46 (2004): 381412Google Scholar.

52. Carl Hayden to Frank Bane, November 20, 1936, Box 92, Office of the Commissioner, Chairman's Files, SSB.

53. Collins, William S., The New Deal in Arizona (Phoenix: Arizona State Parks Board, 1999), 381–82Google Scholar.

54. Edward J. Rourke to Elizabeth H. Doyle, July 19, 1944, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Jane Hoey to George E. Bigge, February 14, 1939, Box 273, Office of the Commissioner, Chairman's Files, SSB; Harold L. Ickes to Pat Harrison, April 13, 1939, Box 699, Carl T. Hayden Papers (Arizona State University Libraries, Arizona Collection, Tempe) (hereafter Hayden Papers); and Navajo Tribal Council Resolutions, 1922–1951 (Washington, D.C.: Government Printing Office, 1952)Google Scholar, 474.

55. Department of the Interior, Office of Indian Affairs, Statistical Report of Public Assistance to Indians, under the Social Security Act (1939); Jane Hoey to Oscar M. Powell, June 1, 1940, Box 92, Office of the Commissioner, Chairman's Files, SSB; and Alanson W. Willcox to Murray A. Hintz, February 21, 1949, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

56. Kirk, Ruth Falkenburg, “Indian Welfare: The Navaho,” Public Welfare News 4 (1946): 83Google Scholar; and Schwartz, Charles F. and Graham, Robert E. Jr., “State Income Payments in 1948,” Survey of Current Business (1949): 15Google Scholar.

57. Carl Hayden to Harry W. Hill, October 23, 1939, Box 699, Hayden Papers; Harry W. Hill to Carl Hayden, May 31, 1940, enclosing letter from H. R. Fryer to Leland D. Carmack, May 22, 1940, Box 699, Hayden Papers; Harry W. Hill to Carl Hayden, May 31, 1940, Box 699, Hayden Papers; John Collier to Carl Hayden, June 1, 1940, Box 699, Hayden Papers; and Carl Hayden to Harry W. Hill, June 1, 1940, Box 699, Hayden Papers.

58. William Zimmerman, Jr., to Carl Hayden, February 24, 1941, Box 36, Hayden Papers; Carl Hayden to Harry W. Hill, April 21, 1941, Box 36, Hayden Papers; “Indians Ask Osborn for Aid to the Aged or Return of Sons,” Arizona Republic, April 17, 1941, Box 36, Hayden Papers; Sidney Osborn to Carl Hayden, April 29, 1941, Box 36, Hayden Papers; A. E. Robinson to Carl Hayden, May 21, 1941, Box 36, Hayden Papers; H. E. Nabekage to Carl Hayden, April 29, 1941, Box 36, Hayden Papers; and Carl Hayden to Sidney Osborn, May 6, 1941, Box 36, Hayden Papers.

59. Philp, John Collier's Crusade, 205–10; J. R. McDougall to Carl Hayden, April 30, 1943, Box 36, Hayden Papers; and John Collier to Floyd G. Brown, June 7, 1943, Box 36, Hayden Papers.

60. Meeting Minutes, April 25, 1946, Arizona Board of Public Welfare Records (Arizona State Library, Archives and Public Records, Phoenix, AZ) (hereafter ABPW); Ruth F. Kirk to Margaretta Dietrich, November 17, 1945, Box 9691, Papers of the Southwestern Association of Indian Affairs (New Mexico Records Center and Archives, Santa Fe) (hereafter SAIA); Jane Hoey to Oscar Powell, July 12, 1943, Box 32, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Harry W. Hill to Carl Hayden, May 15, 1946, Box 36, Hayden Papers; and Jane Hoey to Arthur Altmeyer, September 17, 1947, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

61. United States Department of the Interior, Office of Indian Affairs, The Navajo Welfare Situation, as of October 1, 1947, Box 1, Office of Indian Services Division of Social Services, Records of the Bureau of Indian Affairs, RG 75 (National Archives, Washington, D.C.); Philp, Termination Revisited, 51–53; Iverson, Diné, 188–90.

62. Cowger, National Congress of American Indians, 37, 41; and Arthur Altmeyer to Harry W. Hill, November 7, 1947, Box 40, Papers of Governors Sidney Preston Osborn and Daniel E. Garvey (Arizona State Library, Archives and Public Records, Phoenix) (hereafter Osborn and Garvey Papers). For other evidence of federal administrators' complicity, albeit for their own reasons, see Jane Hoey to Arthur Altmeyer, September 17, 1947, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW (reporting that in September, 1947, attorney Royal Marks approached the Bureau of Public Assistance to inquire about the eligibility of his clients, members of the Hualapai tribe, and was advised “to have the Indians make application and to insist upon a fair hearing if application was not taken”); and Sara H. James (assistant chief, Field Section, Bureau of Public Assistance, Social Security Administration), “Public Responsibility for the American Indian,” in Proceedings of the National Conference on Social Welfare (New York: Columbia University Press, 1947), 182–84 (urging welfare administrators to “make known to the Indian his rights” so as to “help him resolve his conflict between wanting to be treated like other people, and yet wanting to hold on to the security of government control”).

63. Ruth Muskrat Bronson, “The Indians' Attitude toward Cooperation,” in Proceedings of the National Conference on Social Welfare (Chicago: University of Chicago Press, 1931), 644; John Mills Baltazar to Ruth Muskrat Bronson, August 31, 1948, Box 94, NCAI; and Sam Ahkeah to Ruth Muskrat Bronson, August 27, 1948, Box 113, NCAI.

64. Wilkins, David E., “Tribal-State Affairs: American States as ‘Disclaiming’ Sovereigns,” Publius 28 (1998): 5581CrossRefGoogle Scholar; and Wenger, “Land, Culture, and Sovereignty.”

65. “State Drafts Indian Plan,” n.d., Box 36, Hayden Papers; Memorandum summarizing conference held at the State Department of Social Security and Welfare, November 6, 1947, Box 40, Osborn and Garvey Papers; Ben Avery, “Indian Refusal Cuts U.S. Funds,” Arizona Republic, n.d., Box 43, Osborn and Garvey Papers; “Shameful,” Arizona Times, October 31, 1947, Box 36, Hayden Papers; and Ben Avery, “Navajo Ponder Fate of Hunger, Disease,” Arizona Republic, November 5, 1947, Box 113, NCAI.

66. Alanson W. Willcox to Oscar Ewing, December 10, 1947, Box 11, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Meeting Minutes, January 29, 1948, ABPW; New Mexico Department of Public Welfare, Annual Report, Year Ending June 30, 1950; and Harry Hill to Carl Hayden, February 13, 1948, Box 36, Hayden Papers.

67. William E. Warne to Carl Hayden, March 2, 1948, Box 36, Hayden Papers; Harry Hill to Carl Hayden, March 29, 1948, Box 36, Hayden Papers; Meeting Minutes, June 17, 1948, ABPW; Felix S. Cohen, “Our Country's Shame,” Progressive, May 1949, Box 67, Felix S. Cohen Papers (Beinecke Rare Book and Manuscript Library, Yale University, New Haven) (hereafter Cohen Papers); and William Zimmerman, Jr., to Julius Krug, September 3, 1948, Box 67, Julius A. Krug Papers (Library of Congress, Washington, D.C.).

68. On Cohen's departure from government service, see Storrs, Landon R. Y., The Second Red Scare and the Unmaking of the New Deal Left (Princeton: Princeton University Press, 2013): 223Google Scholar. On Cohen's battles for tribal rights and Indian self-determination, see McMillen, Christian W., Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (New Haven: Yale University Press, 2009)Google Scholar; and Kehoe, Alice Beck, A Passion for the True and Just: Felix and Lucy Kramer Cohen and the Indian New Deal (Tucson: University of Arizona Press, 2014)Google Scholar. On Cohen's approach to Indian rights and his understanding of Indians' legal status, see Cohen, “The Spanish Origins of Indian Rights”; Mitchell, Dalia Tsuk, Architect of Justice: Felix S. Cohen and the Founding of American Legal Pluralism (Ithaca: Cornell University Press, 2007)Google Scholar.

69. Rolling, Willard Hughes, “Citizenship and Suffrage: The Native American Struggle for Civil Rights in the American West, 1830–1965,” Nevada Law Journal 5 (2004): 126–40Google Scholar. Only two other states, Utah and Maine, denied Indians the franchise at this time. Ibid., 138.

70. Cohen, Felix S., “Breaking Faith with Our First Americans,” Indian Truth 4 (1948): 4Google Scholar; and Will Rogers, Jr., “Starvation without Representation,” Look Magazine, February 3, 1948, 36.

71. Felix S. Cohen and James E. Curry, Petition to the Social Security Board, July 7, 1948, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and Sam Ahkeah to Ruth Muskrat Bronson, August 27, 1948, Box 113, NCAI. In support of their novel request, the lawyers cleverly cited the new Administrative Procedure Act, legislation designed to demonstrate agencies' adherence to the rule of law. Public Law 404, 79th Cong., 2d. Sess. (June 11, 1946).

72. Complaint, Mapatis (D.D.C. 1948). “Subordinate officers” in the Social Security Board reportedly supported the plaintiffs, as did other Southwestern tribes. James E. Curry to the Convention of the National Congress of American Indians, December 12, 1948, Box 457, NCAI; Meeting Minutes, October 22, 1948, APBW.

73. Complaint, Mapatis (D.D.C. 1948).

74. On the Board's earlier legal interpretations, see Smith to May, December 20, 1939, Box 92, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and A. Delafield Smith to Jane Hoey, November 21, 1947, Box 7, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. On the Board's response to the complaint, see Joseph Meyers to Alanson W. Willcox, October 13, 1948, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and Felix S. Cohen and James E. Curry, “Washington Report to Indians of New Mexico & Arizona on Social Security,” October 29, 1948, Box 401, Harold L. Ickes Papers (Library of Congress, Washington, D.C.). On the connection between the Board's interpretation of the Equal Protection Clause and the arguments advanced by poverty lawyers in the 1960s, see Karen M. Tani, “Administrative Equal Protection: Cooperative Federalism in the Shadow of the Fourteenth Amendment,” Cornell Law Review 100 (forthcoming 2015).

75. Philp, Termination Revisited, 62; and Alanson W. Willcox to Oscar Ewing, March 10, 1949, Box 11, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. Board officials denied that this setback influenced the timing of the hearings. Felix Cohen disagreed. Some evidence suggests that the Board scheduled the hearing at the behest of New Mexico officials. Alanson W. Willcox to Roger Baldwin, October 19, 1949, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Felix S. Cohen to Roger Baldwin, October 26, 1949, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Arthur Altmeyer to Carl Hayden, February 4, 1949, Box 36, Hayden Papers; Meeting Minutes, February 3, 1949, ABPW; and Murray A. Hintz to Jane Hoey, telegram, January 18, 1949, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

76. Arthur Altmeyer to Felix Cohen and James Curry, January 28, 1949, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Brief for All-Pueblo Council, et al., as Amici Curiae, in re Arizona (hearing before the Federal Security Agency), Box 332, AAIA; Brief for the San Carlos Apache Tribe, et al., as Amici Curiae, in re New Mexico (hearing before the Federal Security Agency), Box 332, AAIA. On the Cohen/Curry feud, see Philp, Termination Revisited, 109–10; and Kehoe, A Passion for the True and Just, 147–50. On the Indian voting rights cases, see Cohen, Felix S., “The Erosion of Indian Rights, 1950–1953: A Case Study in Bureaucracy,” Yale Law Journal 62 (1953): 350CrossRefGoogle Scholar.

77. Murray A. Hintz to Arthur Altmeyer, September 9, 1948, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Ruth Kirk to Margaretta Dietrich, May 21, 1947, Box 9691, SAIA; and Bob Ward to Jane Hoey, telegram, November 22, 1948, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

78. Sheridan, Thomas E., Arizona: A History (Tucson: University of Arizona Press, 2012), 226–33, 269–73, 292–99Google Scholar.

79. Harry Hill, “Brief on Reservation Indians,” February 23, 1949, ABPW; and Avery, “Indian Refusal,” Box 43, Osborn and Garvey Papers.

80. Alanson W. Willcox to Murray A. Hintz, February 21, 1949, Box 37, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; and Avery, “Indian Refusal,” Box 43, Osborn and Garvey Papers.

81. Senate Committee on Appropriations, Hearings before a Subcommittee of the Committee on Appropriations on H.R. 2632: An Act Making Appropriations to Supply Deficiencies in Certain Appropriations for the Fiscal Year Ending June 30, 1949, and for Other Purposes, 81st Cong., 1st sess., 1949, 419, 441–42.

82. A Bill to Promote the Rehabilitation of the Navajo and Hopi Tribes of Indians, S 1407, 81st Cong., 1st sess. (March 25, 1949).

83. Alanson Willcox to Oscar Ewing, May 13, 1949, Box 11, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

84. David A. Johnson, Sr., to Ruth M. Bronson, February 5, 1949, Box 120, NCAI; Felix S. Cohen to unnamed recipients, June 17, 1949, Box 88, Cohen Papers; and Cohen to Baldwin, October 26, 1949, Box 53, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW.

85. O'Neill, Colleen, “The ‘Making’ of the Navajo Worker: Navajo Households, the Bureau of Indian Affairs, and Off-Reservation Wage Work, 1948–1960,” New Mexico Historical Review 74 (1999): 375405Google Scholar; Meeks, Border Citizens, 162–65; Andrew Needham, “Sunbelt Imperialism: Boosters, Navajos, and Energy Development in the Metropolitan Southwest,” in Sunbelt Rising, ed. Nickerson and Dochuk, 255–56.

86. See note 13.

87. Joseph H. Meyer to Edwin Yourman, December 15, 1947, Box 36, Correspondence on Public Assistance Programs and the Social Security Act, GC–DHEW.

88. On LULAC, see Gutierrez, David G., Walls and Mirrors: Mexican Americans, Mexican Immigrants, and the Politics of Ethnicity (Berkeley and Los Angeles: University of California Press, 1995), 7487Google Scholar.

89. House Committee on Public Lands, Hearings before a Subcommittee on Indian Affairs of the Committee on Public Lands on H.R. 3476, 202–04; “Citizen Navajo Today Builds Future,” Farmington Daily Times, August 20, 1949, 2.

90. House of Representatives, Conference Report to Accompany S. 1407, 81st Cong., 1st Sess., H.R. Rep. 1338, 4, 6–8.

91. Berger, Bethany R., “Williams v. Lee and the Debate over Indian Equality,” Michigan Law Review 109 (2011): 1488–94Google Scholar; “Indian Bill Is Opposed,” New York Times, October 9, 1949, 38; Rosier, Paul C., Serving Their Country: American Indian Politics and Patriotism in the Twentieth Century (Cambridge, MA: Harvard University Press, 2009), 136–38Google Scholar; President Harry Truman, Rehabilitation of the Navajo and Hopi Tribes of Indians––Veto Message, 81st Cong., 1st sess., 1949, S. Doc. 119, 3.

92. Kotlowski, Dean J., “Burying Sergeant Rice: Racial Justice and Native American Rights in the Truman Era,” Journal of American Studies 38 (2004): 204CrossRefGoogle Scholar; Fixico, Termination and Relocation, 47.

93. Social Security Act Amendments of 1950, Public Law 734, 81st Cong., 2d. sess., (August 28, 1950), § 351.

94. New Mexico Department of Public Welfare, Annual Report, Year Ending June 30, 1952; “Arizona Loses Federal Funds for Child Aid,” Arizona Republic, December 30, 1949, Box 36, Hayden Papers; Herb Nelson, “State Indian Welfare Pact Abrogated,” Phoenix Gazette, June 8, 1950, Box 36, Hayden Papers; James F. Cooper, “Governor Calls for Release of State from Federal Bonds,” [1951], Box 90, Hayden Papers; Lausche, Frank J., “Progress and Problems of the States,” State Government 24 (1951): 268.Google Scholar

95. Meeting Minutes, February 9, 1952, ABPW; Alanson W. Willcox to Oscar Ewing, August14, 1951, Box 11, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW; Arizona Code § 70–607 (Cum. Supp. 1952); and James E. Curry to Frank George, July 1, 1952, Box 457, NCAI.

96. Transcript of Oral Argument, Arizona v. Hobby, No. 2008-52 (D.D.C. Feb. 20, 1953), Box 238, AAIA.

97. Ibid. O'Donoghue's arguments borrowed directly from agency lawyers. Alanson W. Willcox to Oscar Ewing, May 22, 1952, Box 11, Correspondence on Public Assistance Programs and the Social Security Act, GC-DHEW. The constitutional argument also bears the stamp of Joseph Tussman and Jacobus tenBroek's influential article, The Equal Protection of the Laws,” California Law Review 37 (1949): 341–81CrossRefGoogle Scholar, which was informed by the authors' observations of the Japanese American internment and tenBroek's personal experience with public welfare law and administration. Kornbluh, Felicia, “Disability, Antiprofessionalism, and Civil Rights: The National Federation of the Blind and the ‘Right to Organize’ in the 1950s,” Journal of American History 97 (2011): 1023–47CrossRefGoogle Scholar.

Ibid

98. Philp, Termination Revisited, 108–24; Anthony Leviero, “Indian War Whoop Marks Hearings,” New York Times, January 4, 1952, 9.

99. Philp, Termination Revisited, xii; Cohen, “Erosion of Indian Rights,” 376; and Rosier, Paul C., “The Association on American Indian Affairs and the Struggle for Native American Rights, 1948–1955,” Princeton University Library Chronicle 62 (2006): 378Google Scholar.

100. Transcript of Oral Argument, Hobby, No. 2008-52 (D.D.C. Feb. 20, 1953). Not until 1974 did the Supreme Court address whether laws classifying Indians were necessarily racial classifications. See Morton v. Mancari, 417 U.S. 535 (1974) (upholding federal hiring preferences for Indians as a legitimate effort to promote Indian self-government rather than an unconstitutional form of racial discrimination).

101. Berger, Bethany R., “Red: Racism and the American Indian,” UCLA Law Review 56 (2009): 599Google Scholar; and Simpson, Audra, “Subjects of Sovereignty: Indigeneity, the Revenue Rule, and Juridics of Failed Consent,” Law and Contemporary Problems 71 (2008): 208Google Scholar. I thank Leti Volpp for this citation.

102. Ben Avery, “Arizona Indians Urge End To Discrimination,” Arizona Republic, September 25, 1951, Box 3, Commissioner Dillon Myer Files, Records of the Office of the Commission of Indian Affairs, Records of the Bureau of Indian Affairs, RG 75 (National Archives, Washington, D.C.); and Clarence Wesley to Ben Avery, November 8, 1950, Box 94, NCAI.

103. Transcript of Oral Argument, Hobby, No. 2008-52 (D.D.C. February 20, 1953).

104. Hobby, 221 F.2d 498.

105. Arizona officials continued to complain about the difficulty and unfairness of administering benefits to reservation Indians. Paul R. West, “Problems in Administration of Public Assistance on Arizona Indian Reservation,” Public Welfare 17 (January 1959). When Congress finally amended the Social Security Act to explicitly authorize states to challenge federal agency decisions in court, Arizona took advantage at the earliest opportunity. Social Security Amendments of 1965, Public Law 97, 89th Cong., 1st sess. (July 30, 1965), § 404(a); and Arizona State Department of Public Welfare v. Department of Health, Education and Welfare, 449 F.2d 456 (9th Cir. 1971).

106. Another example of this phenomenon, although not explicitly framed that way, is Quadagno, Jill, “Promoting Civil Rights through the Welfare State: How Medicare Integrated Southern Hospitals,” Social Problems 47 (2000): 6889CrossRefGoogle ScholarPubMed.

107. See, generally, Tani, “Securing a Right to Welfare”; Davis, Brutal Need; Melnick, R. Shep, Between the Lines: Interpreting Welfare Rights (Washington, DC: Brookings Institution, 1994)Google Scholar; and Katz, Michael B., The Price of Citizenship: Redefining the American Welfare State (Philadelphia: University of Pennsylvania Press, 2008)Google Scholar.

108. Public Law 280, 83d Cong., 1st sess. (August 15, 1953); Goldberg–Ambrose, Carole, Planting Tail Feathers: Tribal Survival and Public Law 280 (Los Angeles: University of California American Indian Studies Center, 1997)Google Scholar; Anderson, Robert T., “Negotiating Jurisdiction: Retroceding State Authority over Indian Country Granted by Public Law 280,” Washington Law Review 87 (2012): 915–64Google Scholar; Berger, “Williams v. Lee”; Lytle, Clifford M., “The Supreme Court, Tribal Sovereignty, and Continuing Problems of State Encroachment into Indian Country,” American Indian Law Review 8 (1980): 6577CrossRefGoogle Scholar; Wilkins, David E. and Richotte, Keith, “The Rehnquist Court and Indigenous Rights: The Expedited Diminution of Native Powers of Governance,” Publius 33 (2003): 83110CrossRefGoogle Scholar; and Dillsaver, Joe D., “Indian Rights: Eligibility of Indians for State Assistance,” American Indian Law Review 4 (1976): 289–94CrossRefGoogle Scholar.

109. Cohen, “Erosion of Indian Rights,” 390.

110. McMillen, “Native Americans,” 128. Jeff Pasley makes a similar point in “Midget on Horseback,” Common-Place 9 (2008) http://www.common-place.org/vol-09/no-01/pasley/ (accessed November 14, 2014).

111. For more recent examples of Indians' savvy use of their knowledge of bureaucracy and federalism, see Evans, Laura E., Power from Powerlessness: Tribal Governments, Institutional Niches, and American Federalism (New York: Oxford University Press, 2011)CrossRefGoogle Scholar.

112. Canaday, Margot, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton: Princeton University Press, 2011)Google Scholar; Salyer, Lucy E., Laws Harsh as Tigers: Chinese Immigrants and the Shaping of Modern Immigration Law (Chapel Hill: University of North Carolina Press, 1995)Google Scholar; Ngai, Impossible Subjects; Tani, Karen M., “Welfare and Rights before the Movement: Rights as a Language of the State,” Yale Law Journal 122 (2012): 314–83Google Scholar; and see also McLennan, Rebecca, The Crisis of Imprisonment: Protest, Politics, and the Making of the American Penal State, 1776–1941 (New York: Cambridge University Press, 2008)CrossRefGoogle Scholar; Collins, Kristin, “Administering Marriage: Marriage-Based Entitlements, Bureaucracy, and the Legal Construction of the Family,” Vanderbilt Law Review 62 (2009): 10851167Google Scholar; Ablavsky, “The Savage Constitution,” 1083–84; and Bach, Wendy A., “The Hyperregulatory State: Women, Race, Poverty and Support,” Yale Journal of Law and Feminism 25 (2014): 319Google Scholar.

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