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31 Geo. L. J. 1 (1942-1943)
Spanish Origin of Indian Rights in the Law of the United States

handle is hein.journals/glj31 and id is 11 raw text is: THE GEORGETOWN LAW JOURNAL VOLUME 31 NOVEMBER 1942 NUMBER i THE SPANISH ORIGIN OF INDIAN RIGHTS LN THE LAW OF THE UNITED STATES FELIX S. COHEN* I. Fop EwoRD T 0TRACE the origins of our Federal Indian law is a difficult task. The law of the United States with respect to Indian tribes is a curious historical patchwork in which may be found the product of many looms and many weavers. One may divide this strange patchwork into its component patches and find nearly four hundred federal treaties with Indian tribes, about four thousand federal statutes, and an even larger number of judicial and administrative decisions which, by and large, attempt to interpret and to apply these treaties and statutes. The fact that there are Spanish threads in this patchwork is of no greater signifi- cance than the fact that some of the finest of our old Navajo Indian rugs contain red threads (bayeta) that were secured by unraveling the red woolen underwear of Spanish soldiers. What is really important, after all, about the Spaniards and the Navajo rugs is that the Spaniards (largely through the intermediary of the Pueblo Indians) introduced into the country of the Navajos the sheep and the wool of which Navajo rugs are made, and introduced into the life of the Navajos the ways of the sheepherder and weaver, which supplanted ways of the raider and hunter. These were the real Spanish contributions to the Navajo rug. So it is with our law. We should have a poor idea of the Spanish influ- ence upon our Federal Indian law if we divided that tapestry and noted which patches and threads were of Spanish origin. For then we should lose the pattern and the creative principles of this law, and it is this pat- tern and these creative principles that are the distinctive contribution of Spanish juristic thought to our Federal Indian law. This is not merely a fact of antiquarian interest. It is a fact of some importance to the world *B.A., 1926, College of the City of New York; M.A., 1927, Ph.D., 1929, Harvard Univer- sity; LL.B., 1931, Columbia University. Chairman, Board of Appeals, Department of Interior. Author of: E.mcAL SYsTms AND LEGAL IDEALS (1933); HANDBOox OF FEDERAL. INDIAN LAW (1942); Transcendental Nonsense and the Functional Approach (1935) 35 COL. L. REV. 809; The Problems of a Functional Jurisprudence (1937) 1 MODERN LAW REVIEW 5; The Relativity of Philosophical Systems and the Method of Systematic Relativism (1939) 36 JouRNAL op PnmosoPHY 57; The Social and Economic Consequences of Exclusionary Immigration Laws (1939) 2 NAT. LAWYERS GumD QuART. 171.

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