Felix Cohen: Father of Federal Indian Law
Felix Solomon Cohen joined the U.S. Department of the Interior Solicitor's Office in 1933. Learn how Cohen's experiences as a Jewish American and the persecution of European Jews before and during World War II shaped his career and legal philosophy. Dalia Tsuk Mitchell, Professor of Law and History at The George Washington University discusses how his philosophy was inextricably bound to debates concerning the place of political, social, and cultural groups within American democracy.
|Dalia Tsuk Mitchell: First of all, thank you to the Jewish Historical Society of Greater Washington especially David McKenzie for inviting me to speak today and the Department of the Interior for hosting the event. It's a pleasure and really an honor to be here today. As already indicated I will talk about Felix Cohen's life, life and thought particularly in the context of his impact on Federal Indian Law during his 14 years at the Solicitor's Office of the Department of the Interior. I'll try to keep my remarks short and leave some room for questions and answers although if, for any reason you need to raise a hand and ask me to repeat something or if my English turns into Hebrew or things of that sort, by all means please raise a hand and I hope I'll see you and I'll stop.
Just to, so given education and how this whole project started as far as I'm concerned, I was actually at bizarre combination of pursuing graduate degrees both at Yale and at Harvard at the same time. And I was at Yale, at a seminar on Western Americana leave it to Yale University to come up with great titles and the professor said, "Oh, you're a lawyer you should go and look at Felix Cohen's papers".
|01:11||And I said Felix Cohen? Why is Felix Cohen at Western American collection because I knew about Felix Cohen from my studies of legal realism which is isn't the most conventional movement of, in the early 20th century in America. And he said, "Oh yeah, he wrote Fertile Indian, though". And it's really interesting for me that a Jewish kid from New York went to write Federal Indian Laws so go figure out why.
Well I did start to try at least to figure out and I'm not sure to this day that I have a great answer but I've tried and I spent quite a lot of time researching Cohen's papers, some papers, the interior papers DIA and the like and binding this book and I hope I gave some answer in the book about question but that's how it all started. Felix Cohen who was born in 1907. He was the son of Jewish immigrants to New York, a second generation on his father's side and third generation on his mother's side.
||He grew up in Jewish neighborhoods in New York City and around New York, graduated from City College and then pursued graduate degrees in philosophy at Harvard and law at Columbia University. And just to set of impress how young he was, 1928, when he was 21 he got his PhD and in 1931 his LLB. So he was about 24 when he had both degrees and published one of his most famous articles shortly thereafter.
As I sort of suggest in the book and that's the whole premise of the book and my talk today, Cohen belonged to a generation of ethnically diverse, secular, left of center American intellectuals were both mesmerized but also terrified by their multifaceted relationship to diverse cultures and experiences. They embraced modernity with its fluidity and freedom but they felt lost longing to belong in a rapidly changing pluralist society. And I believe, that's what I argue that Cohen found his sense of belonging in the theory I called legal pluralism.
||Cohen was first introduced to the idea of pluralism at home. I would say pluralism and his critics because his father Morris Cohen, the renowned Jewish philosopher of City College was an avid advocate of the enlightenment universal ideals and criticize whether harshly the early 20th century attempts to emphasize ethnic or religious differences. He cared to place for himself in American society by emphasizing similarities between individuals and groups rather than particularities.
And as he put it, this is Morris Cohen and I quote, "There are many human problems of which Jews as human beings and perhaps more than their share but these problems, traced to their ultimate roots in reality were also the problems of other minority groups and every group of human beings was a minority in one situation or another". Please try to remember that quote because I will return to it and the canary quote toward the end of my talk.
||Morris Cohen's universal ideal was a compromise between two conflicting cultural and political positions that were competing to gain a hold among American intellectuals especially Jewish intellectuals in the early 20th century namely the position of assimilation and pluralism or cultural pluralism. Advocates of assimilation, if you remember the Zangwill's play The Melting Pot in 1909 urged immigrants to divest themselves of every vestige of their native culture and merge into a presumably homogenous American culture.
In response, cultural pluralists, most adamantly Horace Kallen in 1915 used the metaphor of multiplicity in unity to argue that America arched to remain a nation composed of many cultural or ethnic nations and to urge harmonious cooperation between different cultures. The compromise of Morris Cohen offered was sort of a fluid understanding of ethnic relations and his argument that particular cultures, the Jewish culture being an example were repositories for insights that when brought together would allow for the development of the more comprehensive conception of national identity.
||According to Morris Cohen, great civilizations could only be achieved when a mixed people freely born from others in religion, language, laws and manners. Morris Cohen was perhaps the epitome of a Jewish immigrant seeking to be accepted by the Anglo-Saxon elite. His son Felix rebelling perhaps again the authority gradually embraced pluralism albeit with a twist.
In the early 1920s when Felix Cohen took his first steps as a practicing lawyer, he followed many progressive scholars including his father rejecting ethnic particularism and emphasizing economic improvement through solidarity and collaboration among groups like labor unions and corporations.
His legal pluralism was informed by British and American theories of political pluralism. Those theories held at groups and oragnizations6 that individuals created to pursue common interest for centers of political life.
||By exploring the world of groups in society, the pluralist attempted to offer a more realistic description of the limited function of the liberal state. Many political pluralist also saw their vision as normative not only descriptive . They saw the state as too broad and obstruct a body to command loyalty from individuals who identified more easily with groups and associates.
In their view society contained and should contain multiple centers of self government. They encourage the growth of diverse groups within the state to facilitate the flourishing forms of identities, experiences and viewpoints.
Legal pluralism was also influenced by legal realism, the movement I already mentioned which was a sure is potential movement in the early 20th century it peaked between the war in the interwar period. Legal realist rejected the classical description of law which dominated American legal institutions roughly through the 1930s.
||Classicists described law as a body of axioms from which judges to do scrolls in particular cases. Legal realists instead argue that this vision obscured their connections between laws, social, economic, political and cultural interests. Realists described law as the outcome of concealed battles over the social utility of diverse activities in a rapidly changing society especially again the activities of organized labor and organized capital.
Now legal realists were, legal realism itself was grounded in skepticism toward existing values and structures of thought but once they moved from their critique to trying to establish a better legal system, they faced a dilemma and that's the dilemma of pluralism. In other word, does skepticism imply non-detrimental attitude toward all customs and values of all groups in society? No scholar suspended all judgment. They came up with a variety of solutions and the legal pluralist image of the state was one of these solutions.
||Particularly it recognized the diversity of values, experiences, and points of view but they tried to limit the resulting uncertainties by embracing groups as the location where individuals can find meaning. Legal pluralists believed that they can maintain their skepticism toward universal norms. Groups could pursue whatever values they found admirable. Yet pluralists also demanded absolute norms outside their boundaries. For example norms regulating the power allocation between groups or the power of certain collectivities especially corporations. Rather than choosing between relativism and absolutism, legal pluralists saw their tasks as defining the appropriate boundaries between group power and group autonomy. It is with this in mind that in 1933 Felix Cohen accepted an invitation from a family friend, an invitation actually to last only a year. The family friend was Nathan Margold, the new solicitor of the Department of the Interior and he invited Cohen to help, come and help draft the Indian Reorganization Act.|
||This Act was meant to end the late 19th century federal policy of allotting tribal lands to individual Indians and forcing the assimilation of Indians. The new dealers wanted to recast Indian or Indian tribes as groups whose political economic autonomy and even maybe cultural autonomy over the reservations and worked to grant them more power over their economic, social, cultural and political affairs. This endeavor became known as the Indian New Deal.
Now it is possible that the Indian's plight against attempts of missionaries throughout the 19th century to convert them to Christianity subconsciously triggered Cohen's interest in Margold's offer. Commissioner of Indian Affair during that time John Collier believed and I quote "That the group of people in this country who had the deepest feeling about Indians came from the Jewish faith". Similarly, Theodore Hasse, who worked with Cohen at Interior so and again I quote "Cohen's zealous fight for Indian right as resorted in the causes of the flight of his father and grandparents from the oppressive government of Russia to the freedom of America and more broadly in the heroic tradition".
||But the evidence that support this argument, at least in Cohen's case comes from statements he made in the 1940s after he left the department and not from the 1930s. It seemed that something else influenced Cohen's decision. And I think there were several factors. First it was the zest of a new deal especially in the Department of the Interior. It was the plight of the Indians and ultimately I think was Cohen's vision for the modern state that brought him to interior.
Here was his opportunity that a lot of new dealers saw in other places to experiment with legal pluralism. Now Cohen's power to affect change was rather limited both by his role at Interior and by the relationship between congress, interior and other departments, state and justice come to mind. But for a while with Margold's support, Cohen was able to bring legal pluralism to bear upon law and policy affecting Indian tribes.
||The new administration found Indian reservations in disturbing condition. Throughout the 19th and early 20th century Indian tribes were at the outer boundaries of American society. They were regarded as distinct political communities with limited sovereignty. That's Chief Justice John Marshall in 1832 Worcester versus Georgia. That's a very famous opinion in that sort of particular category but as domestic dependent nations not foreign nations, their efforts to maintain their tribal's organization proved rather futile in the face of military conquest, fraudulent and unfulfilled treaties and the pressure of white settlements that forced them away from most of their lands and ultimately onto reservations. Then in the last decades of the 19th century, reformers and government officials rejected the reservation system. To eliminate it, the General Allotment Act of 1887, the Dawes Act, sanctioned the distribution of reservation lands to individual Indians.|
||The Dawes Act was grounded in a classical liberal equation of freedom and prosperity with individual possession of property. Proponents of the Act hoped that when Indians were introduced to the institution of private property, they would abandon their customs and traditions, become farmers and be prepared to assimilate into American society.
By 1934, tribes had lost control almost acres two-thirds of their 1887 land holding. In addition to surplus land that went on to the General Land Market and were sold to non-Indians. Individual allotments, which were often too small to farm properly were leased to non-Indians and ultimately sold. Poverty was rampant and the achievement on a few individual on reservations and those who became successful farmers just helped deepen social and political divisions on reservations.
||The diverse regulations put in place to carry out the Dawes Act effectively transferred control of Indian Lands to the BIA, the Bureau of Indian Affairs. Hastening the disintegration of many tribal government or at least forcing them to alter their traditional structures. The psychological and cultural blow was devastating. The tribe's way of life and their values was destroyed resulting in extreme poverty coupled with a sense of shiftlessness on many reservations.
During their first year in office, Secretary Ickes, John Collier, Commissioner of Indian Affair and Margold the solicitor pursued different reform policies that actually did not require congressional approval but they realized that if they wanted their efforts to have a lasting effect or consequence, they needed a complete legislative and policy reform especially a reform that would put an end to allotment.
In the fall of 1933, a decision was made to bring individuals with expertise in other fields and little previous involvement with Indian affairs and no predisposition to any particular solution to the Indian problem to prepare a general legislative reform. That's how Felix Cohen came to the Department of Interior.
||He came as an assistant solicitor, first temporarily in October and then permanently in November. Shortly after his appointment, Cohen described the situation on Indian reservation as in a "a condition approximating legalized anarchy".
In retrospect, Lucy, Cohen's wife commented that Cohen was attracted to Indian law because he had a great feel for the land and the return to simple life. The Indian Way about which she read as a child held tremendous appeal to him. Taken at face value, this attraction seemed to reflect the attitude of many middle class men and women of his generation who shared the nostalgic love of nature and the natural but as I said, I think Cohen's attraction to the Indian's simple life pointed to a stronger conviction.
||He believed that Indian reservations held a promise for a better national future. A future that would implement his legal pluralist vision. He wanted to establish self-governing communities on Indian reservations, communities that would be a model for other groups to follow. For Cohen the legal pluralist, Indian reservations were fragile fields for the cultivation of his vision for the modern state. He was that especially troubled by the disintegration of the political and economic structure of Indian tribes and the pressing of capitalist individualism on Indian reservations and he claimed that that capitalist individualism was pressed through the allotment of tribal property to individual Indians and through the inculcation of the capitalists' psychology.
Cohen believed that the administration should correct past damage by encouraging a communal ceremony which for him meant self-governing communities with collective ownership of property. For a while after he joined interior to help draft the Indian Reorganization Act, Cohen used to comment that they were making Reds off the Indians.
||Informed by the pluralist's belief that individuals could best promote their interest by pursuing their ends as in semi-governed associations with economic and political powers that resembled the powers of the modern state co-interned to the concept of a private corporation with public obligations as the model. He advocated incorporating Indian tribes as a means of ensuring that the tribes' political and economic matters would be dealt with successfully.
He also turned to incorporation and collective ownership of property as a means of bringing Indian reservations out of many generations of poverty and of empowering tribes to manage their affairs and also to fight the corporations that we're trying for decades to take their lands. In addition, Cohen believed that their role of national turning was to ensure the economic and political survival of Indian tribes.
||In other words despite his pluralism and apparent radicalism, Cohen couldn't really evade the tension inherent in legal pluralism between the endorsement of group autonomy and commitment to particular economic and political reforms. While encouraging self government, pluralists also described bureaucratic expertise as a foundation of the modern state and Cohen hoped that tribes would organize around an important economic enterprise and believed that without community enterprises, the tribes would derive little, if anything from the new policy. More importantly, Cohen failed to realize that the corporate module might be very foreign to Indian tribes.
It is for us not surprising and I'm not going to go into all the details especially in hind sight it is not surprising that in retrospect the Indian Reorganization Act fell short of most of its political and economic ambitions. It stopped the allotment of Indian lands but political compromises and just to give you an indication of the first draft that Interior which was written mostly by Cohen with some compromises that he was wiling to make was sort of along 50 something pages and several chapters. He tended that being 18-section act.
||So this political compromises made it ineffective, the act itself and for consolidating lands for Indian groups. More devastating I think was the fact that Cohen and his colleagues were sort of ambivalent about the the appropriate balance between pluralism and national planning ended up rushing tribes sometimes coercing them into a system of organization with which many Indians were unfamiliar.
Tribal governments did not always become what the new dealers envisioned them to be and some commentators go as far as to suggest that they basically became nothing more than adjuncts to the local administration rubber stamping the decisions made by the Bureau of Indian Affairs. Failure however, and Cohen was actively participating in creating not only drafting the act but also served enforcing it and bringing Indian tribes to come under the act adopting constitutions and the like.
||But his failure and his participation helped transform Cohen's legal pluralist's vision. As much as he wanted to view Indian tribes as yet another group with economic and political powers just like corporations and labor unions, Cohen quickly realized that in order for the pluralist model to be effective it would have to pay attention to Indian tribes' unique cultures. He was then in the right place at the right time to bring theories of legal pluralism in the early 20th century theories of pluralism to bear not only upon the treatment of economic and political groups but also upon the federal government treatment of cultural and ethnic groups.
Gradually, his vision for the modern state and his understanding of his place as a Jew in American society changed. Now to fully understand the change I need to shift to a different topic a little bit because the transformation was obviously shaped also by the events, the increasingly horrifying events and treatment of Jews in Europe and in Cohen's perspective the absence of serious American response.
||For a few years in the late 1930s, Cohen with eager support and encouragement attempted to develop a plan to bring Jewish refugees to Alaska, they started in 1938. Following the Indian reorganization model for tribal corporations, Interior recommended the creation of public purpose corporations to sponsor New Alaska settlements. These corporations were to be privately financed but chartered by the federal government specifically interior and include representative chosen by government agencies on their board of directors.
This corporations were titled Alaska Development Corporations and their primary purpose was to promote permanent settlement in Alaska and the development of Alaskan industries so as to contribute to the needs of the national economy and the interest of the National Defense.
||The corporation's powers were limited to the development of industries suitable for Alaska and they could only employ a limited number of settlers an that's the important point. The essence of Interior's plan was the method of selecting settlers. Interior emphasized that a majority of settlers would be unemployed Americans but as Ickes carefully put it, given the reluctance of American citizens to settle in Alaska, it was expected that settlers might include immigrants admitted under existing law and under new category of quota exempt immigrants.
Interior proposed that the new category of Quota Exempt Immigrants would include individuals in foreign nations between the ages of 16 and 45 as well as their spouses and children who would agree to live in Alaska and engage in the prescribed occupations. During the debates off of the deal, Interior strongly asserted that the bill's major objective was Alaska's economic development.
||The refugee aspect was merely incidental. Cohen pushed the point most adamantly. He proclaimed that the immigration features were simply an essential means but not a fundamental purpose of the bill and declared that he and Interior would support the bill even if all the immigration factors were stricken out provided that they were substituted of course by other means of bringing settlers to Alaska.
Even in the letter to his father, Cohen played down the refugee aspect of the program. The proposed bill is not a humanitarian measure except incidentally he wrote, its primary justification is economic and military. But for Morris being a little bit more cautious encouraged his to eliminate from the bill and he referenced to the new category of Quota Exempt Immigrants, Cohen refused. Cohen also played down the fact that most immigrants would likely be Jewish and there was actually correspondents from Jewish in Germany who knew about the plan who were trying to find ways to get to Alaska.
||While he embraced pluralism with respect to other minority groups, he had trouble admitting it in his own personal life. Like other Jewish intellectuals of his generation, Cohen endorsed the liberal division between the personal and the political and took the position that his religious or ethnic background were irrelevant to his position on legal issues of restrictive immigration laws. The refugee problem was universal not a particular one.
Interestingly, diverting attention from the Jewish refugee problem was intended not only to evade anti-Semitism but also opposition from Jewish organizations. Arthur Myer, chairman of the policy and program committee of the American Jewish Consul and a close friend of Morris Cohen, explained to Felix that the initial reaction of the American Jewish Committee and neighborhood was favorable and he believes that the Jewish Labor Committee while somewhat undecided ultimately would support the program. But he also reported that the Jewish, the American Jewish Congress was unsure as to whether Jewish organization should act on this matter because of the potential damage to Zionism, these causes and more important because of their belief that endeavors to increase immigration to the United States would not only fail but would also result in more restrictive changes to existing immigration laws.
||This response was rather alarming. Senator Tidings actually of Maryland who was the chairman of the Committee on Territories and supported the program was concerned about the potential oppositions from Zionist organization. Cohen worked to convince leaders of the Jewish community to express their support. In telling the matter, he wrote to Justice Louis Brandeis, "The bill is not intended as a solution to the Jewish refugee problem. Its greatest support thus far has come from Spanish groups from non-Jewish German groups and from representatives of Finnish groups. It would be a great tragedy I feel if those groups would come to believe that their interest are being sacrificed to the causes of another oppressed minority which can find a hope and salvation not shared by these groups in the Land of Palestine."
||"I feel like my duty therefore to write an urge-- if you consider that our proposed legislation would be of little help in solving the Jewish refugee problem and that Palestine offers the greatest source of hope to refugees of our faith in which conclusions I would concur, you not nevertheless make it as clear as possible that you are not thereby disparaging a course of action on which many different groups of oppressed people have come to be in their hopes."
Diverting attention from the Jewish refugee problem reflected Cohen's personal attitude and realism but Cohen's argument for settling Alaska was a diverse population ran deeper. He believed that bringing barriers, occupations and talents to Alaska would be a foundation for strengthening Alaska's economy and for promoting American values and cultures. In a letter to Warner Brothers Pictures discussing the possibility of a documentary on the Alaska development plan, Cohen stressed the similarities between Alaska and the western frontier in the late 19th century.
||As the west was built through the pioneer spirit of persecuted and poor immigrants from Europe. So can Alaska be transformed into one mores industrial and cultural star on the American shield, he explained. According to Cohen the mixture of many different groups representing various skills have been largely responsible for technological and industrial advance in the United States. He believed that the similar mixture can help achieve the same goal in Alaska.
When his plans to bring refugees to Alaska and then a second plan to attempt to do the same in the Virgin Islands failed. They did not receive congressional or public support, State Department, Justice Department were opposed, Cohen came to realize rather abruptly that the pluralist's description of the
modern state as composed of many autonomous political groups could not protect the interest of groups and individuals outside American society as well as inside it.
||In his efforts to find a place for the outsider and more broadly the insiders in American society, Cohen had to resort to the normative argument in support of pluralism to the role of the diversity played in individual and social life. He began to describe the diversity of groups. Social, cultural, religious, economic, political groups that characterized American society not only as a means of reconciling the tensions created by relativism or source of comforting sense of belonging but also as the ground for the strength of American society and American democratic traditions.
Tolerance with freedom in Cohen's writings in the early 1940s, here was his normative argument, pluralism rested on the assumption that diversity was important for individual and social life. Allowing individuals to join together in diverse group was not enough. To embrace pluralism meant to protect the rights of individuals and groups both within and outside American borders.
||As Cohen put it the human rights of the citizen are safe only when the rights of the foreigner are protected. Furthermore, the pluralists state it would not thrive unless it's protected the needs of all human beings. Hatred of the alien he announced, was the mark of a declining civilization that has lost its capacity to grow and is no longer able to assimilate what is of value in other cultures. It is important to stress I think that his new pluralist's vision was predicated not only upon the ideal of constitutionally protected individual as we came to accept it but also on and more essentially upon an ideal of constitutionally protected group rights.
Going back to federal Indian law, that was premise of Cohen's 1941 Handbook of Federal Indian Law, a more recent edition was published a couple of years ago and this was the most comprehensive treaties on Federal Indian Law to that date and still remains a huge source. I should indicate that it took a while to get it published mostly because it started under Justice but then returned to Interior for publication and there's a whole story there which I will leave but if anyone wants to know more details, I'm happy to tell them.
||It proclaimed, that handbook the long time recognition by federal government of tribal rights and calls with a continued recognition and protection of such rights. As Cohen had noted in the acknowledgment for the handbook, the handbook was grounded in a set of beliefs that formed the intellectual equipment of a generation and believed that the treatment of the Indian in the past is not something of which a democracy can be proud.
I believe that the protection of minority rights and the substitution of reason and agreement for forced and dictation represent a contribution to civilization. I believe that it is the duty of the government to aid oppressed groups in the understanding and appreciation of their legal right and similar beliefs that he argued where the beliefs helped his generation. A commitment to group rights also characterized other aspects of Cohen's work in the 1940s particularly his work to protect Indian, native Americans and Alaskan natives' rights to use their lands and waters the way they conceived their property and his work on the Indian Claims Commission Act in 1946.
||He basically drafted the act that was accepted. Applying his pluralist vision to property law, Cohen aimed to accommodate the meanings of particular groups attributed to ownership and occupancy and there's a huge difference between the meaning that native Americans and Alaskan natives attribute to property and the way we conceive at least at the time of property. Cohen wanted American law to protect different legal regimes specifically to accommodate the property of native Americans and Alaskan natives.
Cohen's argument in his work to protect native conceptions of property reached even further. It reached beyond the protection of group rights because the proof of aboriginal title or the existence of treaties would require the testimony of Indians and their experts.
||Cohen's work on indigenous people's property rights was also, also emphasized the need to develop forums, like the Indian Claims Commission that he helped create to allow Indian tribes and individual Indians to tell their property narratives, their visions of American history. Cohen saw the litigation of land claims not only as a means of bringing about closure, although that's what typically happened but also as a tool of calling attention and memorializing different historical narratives.
Cohen in the late 40s, early 50s embraced the possibility of dialogue as an alternative to totalitarianism in Europe and changing federal Indian policy in the United States. His work throughout the late 1940s aimed to establish new American standards through dialogue. Amidst the world at war, Cohen thought that the only alternative to total annihilation was the preservation of diverse cultures.
||But the by the late 1940s, Interior had become less responsive to Cohen's pluralist agenda. Post-war discussions of civil rights and liberties in the United States failed to address the special status of minority groups. For one thing the post-war, in post-war American legal thought, especially after the rights revolution produced by the war in court, all individuals were considered equal and all were to be similarly treated. Special treatment of a group such as Indian tribes was associated with discriminatory practices.
A concept of collective rights was envisioned as being in direct opposition to the idea of individual liberty. In this atmosphere, Cohen's attempts to protect the property claims of native Americans and Alaskan natives failed. American legal institutions resisted any attempt to remap the terrain of legal definitions especially the definition of property along collectivists' assumptions. By the 1950s instead of using the law as a means of promoting particular vision of the state, Cohen wanted to use law as means of promoting tolerance.
||After 14 years in government service, he no longer trusted policy makers to create a plural policy. He no longer believed that cultural and ethnic tensions would disappear once groups gained economic and political autonomy, Indians had thought Cohen the need to cherish cultural pluralism, both because they were most discriminated against and because Indian philosophy was predicated upon respect for diverse cultures. The holocaust had crystallized the need.
As if reflecting the transformation from self government to group rights to tolerance and its interrelation to Cohen's own sense of identity. In 1949, shortly after he left Interior, Cohen published a very critical article about Indians self government and the way Interior pursued it but he also wrote the following about his experience defending the rights of Indian tribes. The issue we face is not the issue merely of whether Indians will regain their independence of spirit.
||Our interest in Indian self government today is not the interest of sentimentalist or antiquarians. We have a vital concern with Indian self government because the Indian is to America with the Jew was to the Russians are and Hitler's Germany. For us the Indian tribe is the minor's canary. And when it flitters and droops, we know that the poison gases of intolerance threatened all other minorities in our land and who of us is not a member of some minority, thank you. And I'm happy to answer questions or add more details to the story of Cohen and Federal Indian Law or, yeah he did. He traveled actually quite a bit.
Even before, first of all he came to Interior, his first task was to learn, he and another assistant solicitor traveled, sort of to try and gauge Indian's needs. They actually created a whole questionnaire that they sent to Indian reservations and requested the BIA to actually send it to the tribes to get some information and they had a lot of help from anthropologists.
||Cohen's wife, Lucy worked with Span's boss. So he was very much influenced by that whole trend and they had a lot of correspondence, the BIA records here at the archives are just filled with information from what the tribes were sending in and then, you know, I think his trip was cut short but he came back and started sorting through and starting to come up with a plan that would help all tribes. I mean the original plan was rather general. I mean the Indian Reorganization Act talked about consolidating land. I mean he actually wanted to give them their own judicial systems creating tribal courts, which later on he was able to establish outside congress but at that time he was trying to push that in the Indian Reorganization Act, Collier told him to take it out it's not going to work.
And then once the act was passed, actually even before the act was passed, the first draft, he said that they needed to get Indian approval on it and there was a whole lot of disagreement between him and Collier. John Collier the Commission of Indian Affair was a strong cultural pluralist who is someone, I think it was Dorothy Cochward it was but someone claimed that he would basically killed the Indians with his love for the Indians because he had this whole plan and knew exactly what he wanted the Indians to do.
||And Cohen actually said, we need support from the tribes for this legislation and we need to see what they're saying and he pushed for congresses and there was congresses all over the country meeting with the tribes trying to gauge their sort of what they think about their sort of will they think about their needs? Will they think about the act? And that led to a second draft. So even before the legislation was passed, they had a lot of interaction and trying to hear what the tribes and he was pushing a lot of it. He kept saying, you know, you cant just send it to congress. The reason I think Interior ultimately did that is because congress sent it back and said, well we want to know what the tribes are saying.
And then when you read the BIA papers, it almost seemed like the whole country was engage in some, some debate about what to do with, in the reservations. I doubt that was the case but there's a tremendous amount of information. Once they passed the legislation, he was involved with creating their constitution. So he read a lot about the legal systems and he was trying to help the different tribes come with consti-- they did the constitutions in charters because this was also the corporate model.
||There's a lot of debate as to whether they imposed one constitution on all the tribes. That ended up being the case, although Cohen was very adamantly opposed to that but he, what he did, he created a model constitution and he thought that that would be the basic for debate. What happened is the model constitution went to the reservations and he turned back to be the constitution that they adopted. So there was a lot of problems going on administering it but even after that, he often traveled on the tribes. He was adopted by the Blackfeet. So they called him double runner either because he ran fast to achieve all his goals or because he was running between different cultures.
So if you talk and I, when I talked in Arizona, I had students whose grandparents remembered Cohen quite favorably. So he was I think from everything I heard quite beloved by a lot of the tribes. And also in Alaska, he traveled a lot in Alaska trying to help them protect the waters against basically encroachment by corporations. Yes?
||I think one of the reasons I've always found Cohen's writings and his works so fascinating is that he was sort of a genuine guy. I mean he tried to achieve as much good as he could and he didn't shy off admitting failure for example. I think the Alaska Development Plan never got to the point where they would have had to sort of think, oh wait a minute who are we going to, what land are we going to take in order to allow these corporations to come in? I think they thought about it more in abstract as if, I mean it wasn't, I mean they basically, to have corporations, bringing in settlers, we need to solve this settlers' problems although I mean the whole correspondents seems to completely ignore the fact that we are actually solving the refugee problems or trying to. And he thought I think there was big enough space and enough good, I mean acceptance on the Alaskan, at least the Alaskan natives to bring those refugees in.
||By the way the Alaskan, not the Alaskan natives but the Alaskan government there and they completely opposed that whole plan. But the issue of Alaskan natives property rights, to the best of my knowledge at least based on my research didn't come up in that particular context. Although it's a great question but I think there was a lot, throughout there was a lot of conflict. I mean the whole, I think concept of legal pluralism which is sort of I can develop out of Cohen's own writings is, it's created out of a dilemma but he was trying to work his way through it to the best of his knowledge without, while helping Indian tribes, Alaskan natives Jewish refugees. Sorry I don't have more information. Yes.
You know there's a lot, I would say, from my research I don't recall any sort of particular reference to any of the question you just made. You know the religious aspect, how much that resonated with him as I've said, a lot of people suggested it even contemporaries, John Collier, Ted Hasse, I mean people who worked with him, I didn't see it in his writings about the subject.
||I mean it could have been in the back of his mind, you know, here's another oppressed minority, you know, if we all attempt to Christianize them but his Judaism is so sort of progressive at least at the beginning when he came to Interior in the 1930s after the war and sort of I think all of his experiences with Indian tribes sort of pushed him and also the fact that he became a father and some of those things that have changed, how you feel about Judaism but after that point I mean I think he was-- first of all he grew up in a very secular home.
I mean Morris was sort of, I think none of them, I mean he has a brother and a sister, I think both boys did not have a Bar Mitzvah. I think for Passover they used to go to his mother's family. I mean Morris was all against, so Morris wanted to be an American and remembered as, I mean actually he wanted to be this universal philosopher, you know. The irony is he's known as the renowned Jewish philosopher of City College but Morris really wanted to be a philosopher outside ethnic particularities.
||So that's why he grew up and he grew up, you know City College which was predominantly Jewish but the whole notion was socialism and progressivism and that's why he felt he's already, like his grounds were. He, as I said I think, so that's why I think you don't see a lot of discussion of that especially earlier on. And later on things changed with the holocaust, with his experience on Indian tribes gradually realizing that culture is really important and as I said he had a lot of influence from anthropologist.
There's an interesting story just to show you how Judaism comes to play a role, they moved to DC and I should have said something about Cohen in DC but they moved to DC because of the new deal because of his job. I mean he always I think considered himself as a New Yorker and his daughter, his elder daughter went to, I mean the school was all Christian. I mean I actually don't know which school it was in DC but she was the only Jewish girl. And one day her mother found her with a cross on her neck and the story that at least, this is actually some of the stories by the way I should indicate that are from Lash's paper, Joe Lash who wrote the biographies of the Roosevelts.
||He tried to write a dual biography Morris and Felix Cohen and some of the interviews that he conducted in the 1950s helped me write this biography, he stopped I think maybe because he got a different project or he didn't have a lot of support from the family to providing it. But in any event the story from those papers is that Felix took his daughter for a walk in the forest or the woods, maybe it was Brooklyn Park, who knows? And just talked to her about the history of her people and she, in recollection did not remember exactly what he said but it made sense and after that he registered her for Hebrew School and they went to Washington Hebrew up in northwest. They lived in the Palisades.
By the way another anecdote in the world of anecdotes. If I recall correctly, the house they lived in they had someone else buy it for for them because it had a restrictive covenant. So that's for anecdotes. Yes?
||I mean he comes with uhm, when I say legal pluralism it sort of like starts with the ideas of political pluralism, so from the early 20th century especially British political pluralism Harold Luskie, if the name's familiar that later turn into British socialism. And the whole notion I mean actually we're focused mostly on labor unions and corporations, the struggle between labor and capital. So the group, the model for the group of labor unions and corporations and that's I think Cohen brings that model to Indian tribes. He just, he recognizes their history of self government. He loved the fact that they had collective ownership of property which is all of it overemphasized I think. I mean there were a lot of different nuance as in reservations.
And he wants to recreate that. So he, sort of he comes up, OK here is the group just like labor unions and corporations here's another group that can have sovereignty based on economic or collective ownership of property.
||I mean he thinks, I mean every time he's accused, actually during the hearings, the congressional hearings, at some point, people accused him of imposing socialism on Indian reservations right? I mean this is collective ownership of property and Cohen just said well what do you think a corporation is? And I think at that point Collier just said, you know what? Cohen you stay back and don't, because we need to pass this bill and this is not going to pass. This is my interpretation, it's not written anywhere but it seems like he doesn't appear as much in hearings after that.
But that was his notion, I mean it didn't conflict in his mind and I think he understands on the one hand that this is, a group was a history that he wants the different constitutions to reflect maybe but the model is one and that I think is where the conflict of legal pluralism on the one hand understanding the plurality of cultures and values but on the other hand they're coming with some sort of bureaucratic expertise or some model that's going to impose and that would fit everyone. He realizes very quickly that doesn't work to his benefit and he sort of like goes more and more especially when he writes the Handbook of Federal Indian Law.
||More and more and more into the history of the tribes. Although by the way, again this is only interpretation of the history. For example the whole notion that conquest sort of recognized Indian tribes and the like which he struggles with but he always, I mean I think he, when you ask about legal pluralism he came up with a model and he thought that he found on the reservations. Here is what I need, you know, this is the model. Now let's just show the world that this the model and let other groups follow it. And that kind of closed his maybe mind to sink more detailed historical analysis, although he came to it later on.
The interesting thing, interesting correspondents about pluralism actually it was John Collier because John Collier sort of called Felix Cohen and said, you are just a pluralist and Cohen while I think recognizing it said something about like, I don't like labels and I think that's partially because of Morris. Morris had some civil articles he wrote in harsh critique of both cultural and political pluralism earlier on but there's, I don't know of anything Mr. Brandeis.
||Cohen was not very, I don't think Brandeis was one of his sort of close friends. Yeah? Well the handbook started Justice, I think wanted to have -- I mean at least from the record wanted to help to find a way to help their lawyers dealing with land claims. I was the sort of cause for Justice to wanting to write something like the handbook figuring out the Indian Law. And they recruited Cohen so hired him out of interior and how to hold crew to help him and he started writing and coming up with especially the idea of group rights and protecting group rights and when Justice saw the first draft, they decided they don't want the project.
So they've ceremoniously or not fired Cohen in front of his staff basically. I mean there were a lot of sort of correspondents here, he was extremely upset about the whole thing. And then with some help I believe from his father who talked to Frankfurter who was a close friend of his father and who went to sort of like higher authorities it went back to Interior and it was finished there.
||It took them less than a year to do the whole project. I mean he supervised it. He had, I mean to his whole sort of like group of people working basically days and nights to try and complete it and it brought his vision.
Now after, someone just said that the handbook is still like so beloved the Handbook of Federal Indian Law that's the Cohen version. In 1958, there was a second version that tried to eliminate all of Cohen's ideas about protecting tribal rights. And that I think many kept the Cohen versions like secretively to hold on to it and then it was recreated later on when we had multiculturalism to control over other forces. Yeah? Could he have created a better model in 1934 that would've serve in his veteran--? You know that are the questions that historians don't like to answer because we don't, we just don't know.
||I mean I always, I think sometimes and that's one of the thing that I faced when I was writing this, there are those who at least among Federal Indian Law scholars who say, well the Indian New Deal was just another way to sort of wipe out the tribes and they just impose on them whatever laws the government wanted to impose and I said, you probably could read it like that from the perspective of the late 20th century when they started to work on it or early 21st century but I think you have to read and try and figure out what they were trying to do from their own perspective. So, you know, you kind of have to limit what they were trying to do to the time that they were trying to do it. Yeah?
I think there are, to the best of my knowledge and as I said I'm more of a historian than a Federal Indian Law scholar but there are constitutions that are today, they're trying to sort of use similar models to impress and that just sort of, it's a living constitution whether he could have created at that time, hard to tell.
||Yeah? First as far as family and his untimely death, Felix Cohen died in October of 1953, he was 46 years old. He died, I mean I think there was lung cancer but he eventually died from a rupture in his brain, it was overnight. His wife Lucy worked with him throughout. I mean he brought her to help draft the Indian Reorganization Act. She helped him classify the questionnaire that they received from the tribes, worked with the anthropologists and the like.
Because of Interior government federal government regulation she could not be paid at that time for her work because as a couple only he could be paid as a man and wife. And he, I mean again she worked with him on the Handbook of Federal Indian Law and he dedicated the first volume to her, I mean when he gave her a copy, it was to his wife and collaborator Lucy.
||And then, she, Lucy lived quite, I mean I think she was 99 or something like that when she died very recently. She died in 2000, I want to say 7 because it was just before the book came out and it was January I believe. And she continued to serve carry his legacy, although from my conversations with Lucy she, there was so much, there's some critique of the Indian New Deal and what they did especially from more, sort of modern scholars who as I said tried to find at every unless you just let everyone be, you're imposing something on them, which is absolute correct perspective but we need to live in a society at some level. But I think she was very careful to not talk for Cohen, for Felix.
So when I talked with her she said, read his writings and read his papers, they tell his story and that's what I used. I mean I haven't really talked with her about Cohen. Their, his two daughters are not in DC I know that I met them. I met Lucy, I met them at several conferences.
||And when I stated his interpretation, I mean I have my own, my students laugh, I mean I have my own case book and I did corporations and yes, it is my interpretation on corporate law and I don't, I mean when I teach it I say, this is my interpretation of corporate law. I mean that's how I mean I tried to give you the law and what it is but it's also my take on it. None of us has the ability to be completely objective I think and not anyone who was raised in the legal realist tradition and Felix Cohen is definitely a legal realist first and foremost.
One of his, by the way, major contributions to legal thought is an article called Transcendental Nonsense in the Functional Approach. I think to this date it's probably the best article I've read in law school and it was written in 1935. He was short of 30.
||So he, I didn't think he thought he was objective, he just tried to do best. The land, the Indian land out there, Indian Claims Commission Act in 1946 is sort of like the end of the New Deal era I think and I think Cohen recognized that and that was probably one of the reasons he left Interior. He was working to come up with the best set of compromises that he thought he would be able to get. There were a lot of compromises on the Indian Claims Commission Act and ultimately, I mean I don't the act ever fulfilled the goals that he would have assigned it what he came up and that sort of when they ended up with shifting to dialogue.
I think at the end all he, and by the way he drafted the Indian Claims Commission after a year of struggles to try and protect Alaskan natives' rights in their waters and constantly attempts to do that and some other native rights, I mean American natives' rights in property. So he's been, this is like a combination of a lot of failures where basically the legals, the judges in courts and the entire of legal community basically are saying, we're not going to accept that. We're just not going to accept that. This is not going to happen.
||So you know, you come up with something else, they say, we are not going to return land for example. I mean we're not even going to recognize the right in water when he talks about Alaska. So he come up with a compromise and if you go through I mean, there's a whole different story about the Alaskan rights in their water. I mean he went from one compromise to the other trying to sort of give out an olive branch to the other side and everything was rejected and I think that's kind of the frame of mind that he's trying to help draft the Indian Claims Commission Act. And what he does ultimately, he's sort of thinking, you know what? Let's create a forum where historians and anthropologists and Indian tribes and individual Indians will come in and talk and explain what happened here.
So if we can't even, if we can't give back lands, at least we'll have a record of what happened. That also did not happen by the way. I mean that was sort of more of a naive I think belief that anyone would let that happen. So I think this is not like his best, the best act or the act that he wanted to see. It's something very different.
||That's good. I think the, yeah. It's hard to sort of I think understand pluralism without rec-- I mean without the historical context. I think pluralism starts with labor and corporations, that's the model, at least legal pluralism. Theories of and they draw on theories of political pluralism which basically talked about labor unions and maybe incorporating labor unions. This is the British political pluralism.
This is early 20th century and at the same time you have some people talking about cultural pluralism but cultural pluralism was always the more fluid notion without the concept of self government or sovereignty attached to it because no one thought for example to get African-Americans a place in the United States to have their sovereignty that would have been seemed horrific even in the early 20th century. Although there were discussions within the African-American community about things, similar things maybe outside the United States.
||So by the time you get to the New Deal I think the main influence of and to Felix Cohen in light of the New Deal, the many influences theories of political pluralism and so the whole, and I add to that the legal Jewish potential sort of legal realism, which is skepticism about absolute values. And those two converged in the New Deal that's where a lot of legal of realist ended trying to write new federal law and I think the Tennessee Valley Authority the NIRA, all those acts are very within the model of let's come up with sort of semi-sovereign groups in collaboration among groups, that's the same model.
Felix Cohen tries to bring the model to Indian Reorganization Act of the Indian tribes. The problem that he has is that Indian tribes are not just labor and corporations. They're not just created to pursue economic or even political goals. They have culture and, but they also have the sovereignty so it's like very, it's a unique group to deal with these theories of pluralism and that's why I think his ideas developed rapidly once he started seeing what's going on in Indian reservation and once he starts working with the tribes to try and figure out, OK, how do you accommodate cultural values.
||And it's not only him by the way, there's a whole group of legal realists including by the way, as far justices go Douglas who was sitting on the Supreme Court and coming up with interesting decisions about group rights more generally, which I think sort of gets shifted once we get to the war in court and the discussion of cultural diversity and cultural groups shifts into individual rights and the whole sort of beginning of it which I think were much more oriented toward group rights is disappearing until we get to the multiculturalism of the 1980s but it's not the same as the earlier who were trying to figure out, OK, what you do is cultural sovereignty, can you accommodate both of them? And what does sovereignty means when you talk about cultural groups.
And Cohen came up with the notion of let's recognize group rights, cultural group rights. It was easier for him to do in the countries of Indian tribes because you could self limit it to the reservations but I think he was trying to make it more and more abstract and broader and more
||Thank you very much.