Monday, July 20, 2009

update coming soon....

Tuesday, June 12, 2007

The third case in the Marshall Trilogy!

This is the 3rd case dealing with native americans in the newly formed USA.
Here is the Lexisnexis rundown:
In this case, the Cherokee nation sought an injunction to prevent the state from enforcing its laws in the Cherokee nation's territory. The Cherokee nation argued that it was a distinct state, as a political society, separated from the others, capable of managing its own affairs and governing itself.
It also argued that it was not a state of the union and insisted that individually they were aliens, not owing any allegiance to the United States. An aggregate of aliens composing a state must, it alleged, be a foreign state. Each individual being foreign, the whole must have been foreign. The Court denied the Cherokee nation's motion for an injunction. The Court held that the Constitution, which empowered Congress to regulate commerce, specifically treated the Cherokee nation as distinct from a foreign nation.
The Court found that an Indian tribe or nation within the United States was not a foreign state within the meaning of the Constitution. Thus, the Court concluded that because the Constitution did not comprehend Indian tribes in the general term "foreign nations," the Cherokee nation was not foreign to the United States.

Next time, I will discuss what this case means. It's a biggie, in setting the foundation for Indian law in the future...

Worcester v. Georgia - Recap.

So to recap, here are the basic points from Worcester v. Georgia... as taken from my class notes.

Worcester v. GA – this case was about white persons residing within the limits of the Cherokee nation without a "license" and without having taken an oath to support or defend Georgia from hostile indians, as Georgia was ordering all non-indians to do.

  • Before this, there was no history of England interfering with internal affairs or the government of indians, farther than to keep out the agents of foreign powers. Britain considered them as nations capable of maintaining relations of peace and war, of governing themselves, under her protection, and she made treaties with them, the obligations of which she acknowledged. This was the settled state when US came in and took over for England.
  • The Constitution confers on Congress the powers of war and peace, of making treaties, and of regulating commerce with foreign nations, and among the several states, AND WITH THE INDIAN TRIBES. These powers comprehend all that is required for the regulation of our intercourse with the Indians… they’re not limited by any restrictions on their free actions.
  • The Acts of GA (making these laws are )repugnant to the Constitution, laws and treaties of the US. They interfere with relations established between the US and the Cherokee, regulation is exclusive to the government of the nation, not to be undertaken by the states.
  • The Concurring Supreme Court opinion said that "the exercise of the power of self-gov’t by NDNs is undoubtedly contemplated to be temporary. If it becomes inconsistent with political welfare of the states, weaker power must give." meaning they kind of thought that indians would eventually die off or integrate, but they upheld the power of the nations as long as it was there.
  • 2 of the Supreme Court justices, Johnson/Baldwin, interpret the treaty as far as possible to construe sovereignty, as NDNs would see it. But they were not in the majority.
  • This case locks in and legally endorses the supreme power of the federal government over indians - not exactly the best thing, but it did get the states off their backs.
  • This was the famous case where President Jackson said “Marshall has made his decision, now let him enforce it.”
  • McLean’s opinion in this case was read by lower courts as leaving open the possibility of judicial review every so often to determine whether a particular tribe had lost the power of self-government. But it hasn't been really used that way so far.
  • Essentially, the Court said - if federal power/protection over tribes are terminated, its for congress, not courts, to say so.
  • Modern courts have continued to rely on Worcester, but trend has been away from the idea of inherent NDN sovereignty as a bar to state JUR and toward reliance on federal preemption.
  • Court sees the "sovereignty doctrine" today as a backdrop against which the applicable treaties and fed statutes must be read. Worcester is an enduring and most frequently cited case.

Thursday, June 7, 2007

On to the SECOND case in the Marshall trilogy

Now we are hitting up the second case in the Marshall Trilogy. The "Marshall trilogy" is the general name for the first three cases in Indian law. John Marshall was the Supreme Court Justice who really carved out some indian rights and set the stage for Indian law.

Worcester v. Georgia (31 U.S. 515) - in this case, Marshall basically said that the indians were a sovereign nation, and Georgia had no right to try to usurp the federal power to rule over the indian nations - the indians dealt with the FEDS, not the STATES. This is the famous case where President Andrew Jackson (asshat) said "Marshall has made his decision, now let him enforce it" - basically saying the US would not stand by their own laws.

I am trimming this case down, but here is the text of the decision... next time I will discuss what Marshall was getting at...

This cause, in every point of view in which it can be placed, is of the deepest interest.

The defendant is a state, a member of the union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States.

(the Cherokee Nation)

The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the constitution, laws, and treaties of the United States.

(the law that Worcester (a missionary) was accused of breaking was going into the Indian lands, without a license, which the State of Georgia said anyone had to have.)

The legislative power of a state, the controlling power of the constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered.
The ... important inquiry is, does it exhibit a case cognizable by this tribunal?

The indictment charges the plaintiff in error, and others, being white persons, with the offence of "residing within the limits of the Cherokee nation without a license," and "without having taken the oath to support and defend the constitution and laws of the state of Georgia."

The defendant in the state court ... filed the following plea:

"And the said Samuel A. Worcester, ... says, that on the 15th day of July in the year 1831, he was... a resident in the Cherokee nation; and that the said supposed crime or crimes, ... were committed, if committed at all, [within the] Cherokee nation, out of the jurisdiction of this court, [Worcester says he is citizen of... Vermont, and that he entered the ...Cherokee nation in the capacity of a duly authorised missionary under the authority of the president of the United States, and has not since been required by him to leave it: that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating ... scriptures into their language, with the permission and approval of the Cherokee nation, ... this defendant further says, that this prosecution the state of Georgia ought not to have or maintain, because, several treaties have, from time to time, been entered into between the United States and the Cherokee nation of Indians, to wit, at Hopewell, at Holston, at Philadelphia, etc. and, by which treaties, the US acknowledges the Cherokee nation to be a sovereign nation, authorised to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several states.

(because of this, Worcester said, laws drafted by Georgia which seek to control the Cherokee nation - such as laws to decide who could enter into trade with the Cherokee, or who could enter their land, or laws that forced US citizens to take a pledge to Georgia before letting them enter Cherokee land, were unconstitutional, since the treaties said that only the Feds had the right to make laws governing the treaties.)

[Worcester argues that] the said laws of Georgia are unconstitutional and void, because they interfere with, and attempt to regulate and control the intercourse with the said Cherokee nation, which, by the said constitution, belongs exclusively to the congress of the United States; and because the said laws are repugnant to the statute of the United States, ... and that, therefore, this court has no jurisdiction to cause this defendant to make further or other answer to the said bill of indictment.
(Worcester was being prosecuted in Georgia for breaking Georgia's laws regarding who could go onto Cherokee land, in spite of the fact that Georgia did not have the legal right to make such laws. He was arguing here that Georgia should not have the right to prosecute him in their courts. The court basically laughed at him and threw him in jail for 4 years.)

{Worcester says Georgia's] act is, also, unconstitutional; because it interferes with, and attempts to regulate and control, the intercourse with the Cherokee nation, which belongs, exclusively, to congress and, because, also, it is repugnant to the statute of the United States, entitled "an act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers."

The indictment and plea in this case draw in question, we think, the validity of the treaties made by the United States with the Cherokee Indians; ...They also draw into question the validity of a statute of the state of Georgia, "on the ground of its being repugnant to the constitution, treaties and laws of the United States, and the decision is in favour of its validity."

... the acts of the legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighbouring counties of the state, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence.

It enacts that "all white persons, residing within the limits of the Cherokee nation...without a license or permit from his excellency the governor, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and... shall be punished by confinement to the penitentiary, at hard labour, for a term not less than four years."

...the very passage of this act is an assertion of jurisdiction over the Cherokee nation, and of the rights and powers consequent on jurisdiction. The first step, then, ... is an examination of the rightfulness of this claim.

(and here we start with the history. This explains the mindset of the colonists back then....)
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.

After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing.

Did these adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, ...a rightful property in the soil, ...or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?
But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.

The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate.To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, "that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European (remember this from Johnson v. McIntosh? )
governments, which title might be consummated by possession."

This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the european discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell.

(this is basically "indian title" - meaning the indians had the right to occupy their lands, but that they could not sell them or treaty with foreign nations... it meant that the federal government had the right to sell their lands or control them, and that they were subordinate to the feds, basically that they were domestic dependent nations.)

The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this pre-emptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political; but no attempt, so far as is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.

(so Britain started out this way with the Indians, and then when America became a separate country, they kept up with it.... it was done in the first place, so why stop now? is essentially what the court is saying.)

Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. The first of these charters was made before possession was taken of any part of the country. They purport, generally, to convey the soil, from the Atlantic to the South Sea. This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood.
(so what gave the King the right to decide who got land outside of his kingdom? whose bright idea was this?)

The power of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. In the first charter to the first and second colonies, they are empowered, "for their several defences, to encounter, expulse, repel, and resist, all persons who shall, without license," attempt to inhabit "within the said precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least detriment or annoyance of the said several colonies or plantations."

The charter to Connecticut concludes a general power to make defensive war with these terms: "and upon just causes to invade and destroy the natives or other enemies of the said colony."

The same power, in the same words, is conferred on the government of Rhode Island.

This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only "on just cause." The very terms imply the existence of a country to be invaded, and of an enemy who has given just cause of war.

The charter to Georgia recites: "and whereas our provinces in North America have been frequently ravaged by Indian enemies, more especially that of South Carolina, which, in the late war by the neighbouring savages, was laid waste by fire and sword, and great numbers of the English inhabitants miserably massacred; and our loving subjects, who now inhabit there, by reason of the smallness of their numbers, [are vulnerable]

The power of war (that the federal government gives to the states) is given only for defence, not for conquest.

The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity -- objects to be accomplished by conciliatory conduct and good example; not by extermination.

[The Indians signed treaties with the federal government] in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them.

Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.

(so basically, the Crown, and then the US, left the internal affairs of the Indians alone - and if THEY did so, then Georgia certainlyhad no right to interfere!)

The early journals of congress exhibit the most anxious desire to conciliate the Indian nations. Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions."

The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which might excite hostility was avoided.

During the war of the revolution, the Cherokees took part with the British. After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the was continued. Their political situation being changed, they might very well think it advisable to assume a higher tone, and to impress on the Cherokees the same respect for congress which was before felt for the king of Great Britain. This may account for the language of the treaty of Hopewell.There is the more reason for supposing that the Cherokee chiefs were not very critical judges of the language, from the fact that every one makes his mark; no chief was capable of signing his name. It is probable the treaty was interpreted to them.

When the United States gave peace, did they not also receive it? Were not both parties desirous of it? If we consult the history of the day, does it not inform us that the United States were at least as anxious to obtain it as the Cherokees? We may ask, further: did the Cherokees come to the seat of the American government to solicit peace; or, did the American commissioners go to them to obtain it? The treaty was made at Hopewell, not at New York. The word "give," then, has no real importance attached to it.

The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power. (not even Georgia!)

The general law of European sovereigns, respecting their claims in America, limited the intercourse of Indians, in a great degree, to the particular potentate whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was, that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusions into their country, from encroachments on their lands, and from those acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves -- an engagement to punish aggressions on them. It involved, practically, no claim to their lands, no dominion over their persons. It merely bound the nation to the British crown, as a dependent ally, claiming the protection of a powerful friend and neighbour, and receiving the advantages of that protection, without
involving a surrender of their national character.

They receive the Cherokee nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected.

Now in the Cherokee's treaty with the US, (see below to read it) it says, "for the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs, as they think proper." (again, this means the FEDS, NOT GEORGIA!)

To construe the expression "managing all their affairs," into a surrender of self-government, would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them.

This treaty's essential articles treat the Cherokees as a nation capable of maintaining the relations of peace and war; and ascertain the boundaries between them and the United States.

The treaty of Hopewell seems not to have established a solid peace. To accommodate the differences still existing between the state of Georgia and the Cherokee nation, the treaty of Holston was negotiated in July 1791. The existing constitution of the United States had been then adopted, and the government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of his sounding expressions, denoting superiority. We hear no more of giving peace to the Cherokees. The mutual desire of establishing permanent peace and friendship, and of removing all causes of war, is honestly avowed, and, in pursuance of this desire, the first article declares, that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee nation.

This relation between the Cherokee and the US was that of a nation claiming and receiving the protection of one more powerful: not that of individuals abandoning their national character, and submitting as subjects to the laws of a master.

This treaty, thus explicitly recognizing the national character of the Cherokees, and their right of self government; thus guarantying their lands; assuming the duty of protection, and of course pledging the faith of the United States for that protection; has been frequently renewed, and is now in full force.

To the general pledge of protection have been added several specific pledges, deemed valuable by the Indians.Some of these restrain the citizens of the United States from encroachments on the Cherokee country, and provide for the punishment of intruders.

The treaties and laws of the United States contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union. Is this the rightful exercise of power, or is it usurpation?

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.

Now for the decision: The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.

Can this court revise, and reverse it?

... the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.

They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself.

They are in equal hostility with the acts of congress for regulating this intercourse, and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the nation with its permission, also a violation.

Will these powerful considerations avail the plaintiff in error? We think they will.

It is the opinion of this court that the judgment of the superior court for the county of Gwinnett, in the state of Georgia, condemning Samuel A. Worcester to hard labour, in the penitentiary of the state of Georgia, for four years, was pronounced by that court under colour of a law which is void, as being repugnant to the constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled.

Dissents not discussed here.

So how much of this made sense to everyone? Questions? Comments? Anyone? Next time I will go into what all of this meant.

Sunday, May 20, 2007

more coming soon!

just got done with finals... more will be posted soon. I just need a few days to unwind! I GRADUATED! WOOHOO!

Sunday, April 22, 2007

The Treaty of Hopewell

I thought you guys might want to see an example of a treaty. Just so you know what many of them looked like, and what they included. So here is the Treaty of Hopewell, and this was done between the US and the Cherokee Nation. I am posting this because it is interesting to read a treaty, and because this one is kind of important. More on why, next time I write.

Basically all you have to know here is that the US did draft a lot of treaties with the indians, and they did this up until 1871, when Congress stopped treatying, but did agree to honor all treaties forever that had been entered into up to that point.

Treaty of Hopewell
November 28, 1785
7 Stat. 18

Articles concluded at Hopewell, on the Keowee, between Benjamin Hawkins, Andrew Pickens, Joseph Martin, and Lachlan M'Intosh, Commissioners Plenipotentiary of the United States of America, of the one Part, and the Head-Men and Warriors of all the Cherokees of the other.

The Commissioners Plenipotentiary of the United States, in Congress assembled, give peace to all the Cherokees, and receive them into the favor and protection of the United States of America, on the following conditions:


The Head-Men and Warriors of all the Cherokees shall restore all the prisoners, citizens of the United States, or subjects of their allies, to their entire liberty: They shall also restore all the Negroes, and all other property taken during the late war from the citizens, to such person, and at such time and place, as the Commissioners shall appoint. /A/


The Commissioners of the United States in Congress assembled, shall restore all the prisoners taken from the Indians, during the late war, to the Head-Men and Warriors of the Cherokees, as early as is practicable. /B/


The said Indians for themselves and their respective tribes and towns do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whosoever. /C/


The boundary allotted to the Cherokees for their hunting grounds, between the said Indians and the citizens of the United States, within the limits of the United States of America, is, and shall be the following, viz. Beginning at the mouth of Duck river, on the Tennessee; thence running north-east to the ridge dividing the waters running into Cumberland from those running into the Tennessee; thence eastwardly along the said ridge to a north-east line to be run, which shall strike the river Cumberland forty miles above Nashville; thence along the said line to the river; thence up the said river to the ford where the Kentucky road crosses the river; thence to Campbell's line, near Cumberland gap; thence to the mouth of Claud's creek on Holstein; thence to the Chimney-top mountain; thence to Camp-creek, near the mouth of Big Limestone, on Nolichuckey; thence a southerly course six miles to a mountain; thence south tothe North-Carolina line; thence to the South-Carolina Indian boundary, and along the same south-west over the top of the Oconee mountain till it shall strike Tugaloo river; thence a direct line to the top of the Currohee mountain; thence to the head of the south fork of Oconee river. /D/


If any citizen of the United States, or other person not being an Indian, shall attempt to settle on any of the lands westward or southward of the said boundary which are hereby allotted to the Indians for their hunting grounds, or having already settled and will not remove from the same within six months after the ratification of this treaty, such person shall forfeit the protection of the United States, and the Indians may punish him or not as they please: Provided nevertheless, That this article shall not extend to the people settled between the fork of French Broad and Holstein rivers, whose particular situation shall be transmitted to the United States in Congress assembled for their decision thereon, which the Indians agree to abide by. /E/


If any Indian or Indians, or person residing among them, or who shall take refuge in their nation, shall commit a robbery, or murder, or other capital crime, on any citizen of the United States, or person /F/ under their protection, the nation, or the tribe to which such offender or offenders may belong, shall be bound to deliver him or them up to be punished according to the ordinances of the United States; Provided, that the punishment shall not be greater than if the robbery or murder, or other capital crime had been committed by a citizen on a citizen.


If any citizen of the United States, or person under their protection, shall commit a robbery or murder, or other capital crime, on any Indian, such offender or offenders shall be punished in the same manner as if the murder or robbery, or other capital crime, had been committed on a citizen of the United States; and the punishment shall be in presence of some of the Cherokees, if any shall attend at the time and place, and that they may have an opportunity so to do, due notice of the time of such intended punishment shall be sent to some one of the tribes. /G/


It is understood that the punishment of the innocent under the idea of retaliation, is unjust, and shall not be practiced on either side, except where there is a manifest violation of this treaty; and then it shall be preceded first by a demand of justice, and if refused, then by a declaration of hostilities. /H/


For the benefit and comfort of the Indians, and for the prevention injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper. /I/


Until the pleasure of Congress be known, respecting the ninth article, all traders, citizens of the United States, shall have liberty to go to any of the tribes or towns of the Cherokees to trade with them, and they shall be protected in their persons and property, and kindly treated. /J/


The said Indians shall give notice to the citizens of the United States, of any designs which they may know or suspect to be formed in any neighboring tribe, or by any person whosoever, against the peace, trade or interest of the United States. /K/


That the Indians may have full confidence in the justice of the United States, respecting their interests, they shall have the right to send a deputy of their choice, whenever they think fit, to Congress. /L/


The hatchet shall be forever buried, and the peace given by the United States, and friendship re-established between the said states on the one part, and all the Cherokees on the other, shall be universal; /M/ and the contracting parties shall use their utmost endeavors to maintain the peace given as aforesaid, and friendship re-established.

In witness of all and every thing herein determined, between the United States of America and all the Cherokees, we, their underwritten Commissioners, by virtue of our full powers, have signed this definitive treaty, and have caused our seals to be hereunto affixed.

Done at Hopewell, on the Keowee, this twenty-eighth of November, in the year of our Lord one thousand seven hundred and eighty-five.

Benjamin Hawkins, (L.S.)

And'w Pickens, (L.S.)

Jos. Martin, (L.S.)

Lach'n McIntosh, (L.S.)

Koatohee, or Corn Tassel of Toquo, his x mark, (L.S.)

Scholauetta, or Hanging Man of Chota, his x mark, (L.S.)

Tuskegatahu, or Long Fellow of Chistohoe, his x mark, (L.S.)

Ooskwha, or Abraham of Chilkowa, his x mark, (L.S.)

Kolakusta, or Prince of Noth, his x mark, (L.S.)

Newota, or the Gritzs of Chicamaga, his x mark, (L.S.)

Konatota, or the Rising Fawn of Highwassay, his x mark, (L.S.)

Tuckasee, or Young Terrapin of Allajoy, his x mark, (L.S.)

Toostaka, or the Waker of Oostanawa, his x mark, (L.S.)

Untoola, or Gun Rod of Seteco, his x mark, (L.S.)

Unsuokanail, Buffalo White Calf New Cussee, his x mark, (L.S.)

Kostayeak, or Sharp Fellow Wataga, his x mark, (L.S.)

Chonosta, of Cowe, his x mark, (L.S.)

Chescoonwho, Bird in Close of Tomotlug, his x mark, (L.S.)

Tuckasee, or Terrapin of Hightowa, his x mark, (L.S.)

Chesetoa, or the Rabbit of Tlacoa, his x mark, (L.S.)

Chesecotetona, or Yellow Bird of the Pine Log, his x mark, (L.S.)

Sketaloska, Second Man of Tillico, his x mark, (L.S.)

Chokasatahe, Chickasaw Killer Tasonta, his x mark, (L.S.)

Onanoota, of Koosoate, his x mark, (L.S.)

Ookoseta, or Sower Mush of Kooloque, his x mark, (L.S.)

Umatooetha, the Water Hunter Choikamawga, his x mark, (L.S.)

Wyuka, of Lookout Mountain, his x mark, (L.S.)

Tulco, or Tom of Chatuga, his x mark, (L.S.)

Will, of Akoha, his x mark, (L.S.)

Necatee, of Sawta, his x mark, (L.S.)

Amokontakona, Kutcloa, his x mark, (L.S.)

Kowetatahee, in Frog Town, his x mark, (L.S.)

Keukuck, Talcoa, his x mark, (L.S.)

Tulatiska, of Chaway, his x mark, (L.S.)

Wooaluka, the Waylayer, Chota, his x mark, (L.S.)

Tatliusta, or Porpoise of Tilassi, his x mark, (L.S.)

John, of Little Tallico, his x mark, (L.S.)

Skelelak, his x mark, (L.S.)

Akonoluchta, the Cabin, his x mark, (L.S.)

Cheanoka, of Kawetakac, his x mark, (L.S.)

Yellow Bird, his x mark, (L.S.)


Wm. Blount,

Sam'l Taylor, Major.,

John Owen,

Jess. Walton,

Jno. Cowan, capt. comm'd't,

Thos. Gregg,

W. Hazzard.

James Madison,

Arthur Cooley,.

Sworn interpreters. A/ Indians to restore all prisoners, etc. B/ United States to restore all prisoners. C/ Cherokees acknowledge protection of United States. D/ Boundaries. E/ No citizen of United States to settle on Indian lands. F/ Indians to deliver up criminals. G/ Citizens of United States committing crimes against Indians to be punished. H/ Retaliation prohibited. I/ United States to regulate trade. J/ Special provision for trade. K/ Indians to give notice of designs against United States. L/ Indians may send deputy to Congress. M/ Peace and friendship perpetual.

Moving along...

Okay. So that case below, Johnson v. McIntosh - is the most important, critical case in Native American law... why? Because it set the precedent. The themes that Chief Justice Marshall set down back in that case are the themes that pervade all of Indian law today. The 3 main points?

1. Congress exercise plenary power (absolute, unlimited power) over Indian affairs.
2. Indians retain sovereign, but diminished, inherent power over their internal affairs and reservation territory.
3. The US possesses a trust responsibility (kind of like a guardianship) toward indian tribes.

I would read that case over and over because it explains the mindset and the foundation for everything that is done from that point on.

Justice Marshall avoided the 2 logical extremes here. What were his other choices? He could have found that "discovery" erased all indian title, and that the indians were shit out of luck, and had no rights whatsoever. But he didn't want to do that. That would have been ABSOLUTELY unfair to the indians, and he had some sense of fairness. He had to work with the system. The other decision he could have made was that indians had full power over their lands, and that was not an option, either, because it would have blown everything out of the water for the United States up to that point. The colonists would never have settled for that, and it would have made the Supreme Court useless since nobody would have obeyed them anyhow. And the Supreme Court, by the constitution, is the supreme law of the land - a THIRD of the power in the US. The other 2/3 are the exective branch (president) and legislative branch (congress and the house of representatives).

So Marshall struck the best compromise he COULD, giving Indians some rights, but diminished ones.

And while this was a loss in some ways for the indians, it also did protect them in other ways. Think about it. If the settlers could go in and buy/cheat/steal/extort/coerce the indians into selling their lands, they would have stolen a lot more land a lot earlier. This told everyone in the US that the Indians could only sell their land with permission from the Feds... so don't bother trying to gyp them, because you are just gonna lose the land. The US won't have your back.

So it wasn't all bad, considering the circumstances and the times.

Monday, April 16, 2007

The English/American control of NDNs.

Sorry for the delay, folks, I have been hopping with school, but I want to keep this blog going so I am going to add a post now...

Basically, once the English came to the new world, they followed these justifications that the Spaniards propelled. They felt that they were the "discoverers" of the new land, and that as such, they had a right to the new land, and to the people who inhabited it. I know, it makes no sense, how could they "discover" it if it was already inhabited?

At any rate, the English, and then the Americans later, were in a real bind. They wanted to get as much land as possible.. but in order to get the land, they had to recognize that the indians had some sort of title and right to the land that they could give away.. after all, if they didn't recognize that the indians had the right to sell or give away the land, what good was it to get their permission?

On the other hand, they didn't want to recognize them as an equal country, so they came up with a compromise. Indian Title. What this means is that the indians had the power to trade or sell, but they were subservient to the colonists... not quite an equal nation.

The first case ever in Indian law came about after the US had finally won the revolution and booted ENgland out. THey had stepped into England's shoes when it came to control over the indians, and they kept using their mindset.

I think it is ironic that the first case in indian law - EVER - is between two white parties. And because the case is so important, I am going to put the text of the case decision below. Basically, here's what happened.

One guy went into the indian territory, and bought a plot of land from the indians. The indians then signed a treaty with the US, ceding a huge chunk of land to the settlers. The land this guy bought was within that boundary. So then the US government sold that plot of land to another person...

Years later, both the guy who bought it from the indians, and the guy who bought it from the Government, sued each other so they could determine who had the title to the land. The Supreme Court ultimately decided that under the doctrine of discovery, the guy who bought it from the indians did NOT have good title, as only the Feds could buy or allow the indians to sell their land. On an alternate theory, they suggest that the first guy who bought from the indians ONLY BOUGHT THE TITLE the indians had... so therefore, since they did not own the land free and clear, but were kind of clipped by the US government control of the land, the guy who bought it only had the same title the indians had.. and when they treatied it away to the US, that land went, too.

It's a cool case to read, because it shows what the mindset was of the original supreme court. This is the first case Chief Justice Marshall really got into, regarding Indian rights, and a lot of what he says in this decision set the scene for the way the US would deal with indians forever after.

So here's the case. Again - this is the first case in Indian Law in the US (and Canada loosely follows our decisions in the beginning when they deal with Indians) and again, ironically, this first case in Indian law is between two white guys.. go figure.

Don't worry, I won't ALWAYS print most of the entire text of cases, but this one is SO enormously important, I wanted to make sure you all had a chance to read it if you wanted to...

Johnson v. McIntosh
Mr. Chief Justice MARSHALL delivered the opinion of the Court. The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations; and the question is, whether this title can be recognised in the Courts of the United States?

The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people; and likewise show, that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered and ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.
The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.

While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

Spain did not rest her title solely on the grant of the Pope. Her discussions respecting boundary, with France, with Great Britain, and with the United States, all show that she placed it on the rights given by discovery. Portugal sustained her claim to the Brazils by the same title.

The claim of the Dutch was always contested by the English; not because they questioned the title given by discovery, but because they insisted on being themselves the rightful claimants under that title. Their pretensions were finally decided by the sword.

No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.

In this first effort made by the English government to acquire territory on this continent, we perceive a complete recognition of the principle which has been mentioned. The right of discovery given by this commission, is confined to countries "then unknown to all Christian people;" and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery.

By the charter of 1606, under which the first permanent English settlement on this continent was made, James I. granted to Sir Thomas Gates and others, those territories in America lying on the seacoast,...which either belonged to that monarch, or were not then possessed by any other Christian prince or people. The grantees were divided into two companies at their own request.
Under this patent, New-England has been in a great measure settled. The company conveyed to Henry Rosewell and others, in 1627, that territory which is now Massachusetts; and in 1628, a charter of incorporation, comprehending the powers of government, was granted to the purchasers.

Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. In those governments which were denominated royal, where the right to the soil was not vested in individuals, but remained in the crown, or was vested in the colonial government, the king claimed and exercised the right of granting lands, and of dismembering the government at his will....
It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account.

These various patents cannot be considered as nullities; nor can they be limited to a mere grant of the powers of government. A charter intended to convey political power only, would never contain words expressly granting the land, the soil, and the waters.
Further proofs of the extent to which this principle has been recognised, will be found in the history of the wars, negotiations, and treaties, which the different nations, claiming territory in America, have carried on, and held with each other.
Between France and Great Britain, whose discoveries as well as settlements were nearly contemporaneous, contests for the (USA), actually covered by the Indians, began as soon as their settlements approached each other, and were continued until finally settled in the year 1763, by the treaty of Paris.
These conflicting claims produced a long and bloody war, which was terminated by the conquest of the whole country east of the Mississippi. In the treaty of 1763, France ceded and guarantied to Great Britain, all Nova Scotia, or Acadie, and Canada, with their dependencies; and it was agreed, that the boundaries between the territories of the two nations, in America, should be irrevocably fixed by a line drawn from the source of the Mississippi, through the middle of that river and the lakes Maurepas and Ponchartrain, to the sea. This treaty expressly cedes, and has always been understood to cede, the whole country, on the English side of the dividing line, between the two nations, although a great and valuable part of it was occupied by the Indians. Great Britain, on her part, surrendered to France all her pretensions to the country west of the Mississippi.It has never been supposed that she surrendered nothing, although she was not in actual possession of a foot of land. She surrendered all right to acquire the country; and any after attempt to purchase it from the Indians, would have been considered and treated as an invasion of the territories of France.

By the 20th article of the same treaty, Spain ceded Florida, with its dependencies, and all the country she claimed east or southeast of the Mississippi, to Great Britain. Great part of this territory also was in possession of the Indians.

Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. Have the American States rejected or adopted this principle?
By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the "propriety and territorial rights of the United States," whose boundaries were fixed in the second article. By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. We had before taken possession of them, by declaring independence; but neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.

The States, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, on conditions expressed in their deeds of cession, which demonstrate the opinion, that they ceded the soil as well as jurisdiction, and that in doing so, they granted a productive fund to the government of the Union. The lands in controversy lay within the chartered limits of Virginia, and were ceded with the whole country northwest of the river Ohio. This grant contained reservations and stipulations, which could only be made by the owners of the soil; and concluded with a stipulation, that "all the lands in the ceded territory, not reserved, should be considered as a common fund, for the use and benefit of such of the United States as have become, or shall become, members of the confederation," "according to their usual respective proportions in the general charge and expenditure, and shall be faithfully and bona fide disposed of for that purpose, and for no other use or purpose whatsoever."

The ceded territory was occupied by numerous and warlike tribes of Indians; but the exclusive right of the United States to extinguish their title, and to grant the soil, has never, we believe, been doubted.
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.

The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.
(Big point, here)
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers.

When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power.

But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies.

That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.
This opinion conforms precisely to the principle which has been supposed to be recognised by all European governments, from the first settlement of America. The absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring. Such a right is no more incompatible with a seisin in fee, than a lease for years, and might as effectually bar an ejectment.

Another view has been taken of this question, which deserves to be considered. The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the Courts of the United States cannot interpose for the protection of the title. The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased; holds their title under their protection, and subject to their laws. If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty.

As such a grant could not separate the Indian from his nation, nor give a title which our Courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a Court to say, that different consequences are attached to this purchase, because it was made by a stranger. By the treaties concluded between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity.They ceded to the United States this very property, after having used it in common with other lands, as their own, from the date of their deeds to the time of cession; and the attempt now made, is to set up their title against that of the United States.
It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.
If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

So far as respected the authority of the crown, no distinction was taken between vacant lands and lands occupied by the Indians. The title, subject only to the right of occupancy by the Indians, was admitted to be in the king, as was his right to grant that title. The lands, then, to which this proclamation referred, were lands which the king had a right to grant, or to reserve for the Indians.
The authority of this proclamation, so far as it respected this continent, has never been denied, and the titles it gave to lands have always been sustained in our Courts.
It has never been contended, that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right. The object of the crown was to settle the seacoast of America; and when a portion of it was settled, without violating the rights of others, by persons professing their loyalty, and soliciting the royal sanction of an act, the consequences of which were ascertained to be beneficial, it would have been as unwise as ungracious to expel them from their habitations, because they had obtained the Indian title otherwise than through the agency of government. The very grant of a charter is an assertion of the title of the crown, and its words convey the same idea.The charter contains an actual grant of the soil, as well as of the powers of government.

This charter, and this letter, certainly sanction a previous unauthorized purchase from Indians, under the circumstances attending that particular purchase, but are far from supporting the general proposition, that a title acquired from the Indians would be valid against a title acquired from the crown, or without the confirmation of the crown.

After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States; and that there is no error in the judgment which was rendered against them in the District Court of Illinois.

Judgment affirmed, with costs

Sunday, March 25, 2007

the Spaniard's justifications, continued.

WHAT were these Spaniards and other Europeans telling themselves to convince themselves that what they were doing was justifiable?

Well, they got a lot of their rhetoric from the Bible, it seems. And this got spun into some sort of “natural-law obligation.”

“Every animal loveth it’s kind” – Ecclesiastes. Therefore, one writer said, “it appears that friendship among men exists by natural law and it is against nature to shun society of harmless folk…” also, he said, in the book of Matthew, “I was a stranger and ye took me in’… hence as the reception of strangers seems to be by natural law, that judgment of Christ will be pronounced with universal application.”

In other words, they pulled some random quotes from the BIBLE and decided they meant the Indians HAD to welcome them or they were violating the natural order of things.

This, of course, was news to the Indians.

Another line that was trotted out? “Natural law opened the land of the Indians to Spanish economic exploits. The sovereign of the Indians is bound by the law of nature to love the Spaniards. Therefore the Indians may not causelessly prevent the Spaniards from making their profit where it can be done without any injury to themselves.”

I wonder how this would have worked if the Indians came to Spain and set up shop wherever they felt like it.

Then of course, it went further. “Brotherly correction is required by the law of nature, just as the law of brotherly love is. Since then, the Indians are not only all in sin, but outside the pale of salvation, therefore, it concerns the Christians to correct and direct them, nay, it seems they are bound to do so.”

Writings from many scholars and politicians went on to say, basically, that if the Indians tried to stop the Spaniards from taking over the land, it was justifiable to use whatever force was necessary against the Indians. And in addition, it was the DUTY of the Christians to force their religion on the Indians.

So, this was essentially the mindset that the Spaniards had. In the next post, we’ll hit on how this carried over to the English, and from there, to the Americans, giving us the first foundation for federal Indian law.

the earliest days of discovery

Ok, NOW we are getting into the good stuff… starting back at the beginning – (or the beginning of the end, depending on how you look at it)

Indian law is unique because it wasn’t just created out of another set of laws; it wasn’t just written up and adhered to. Instead, it kind of evolved out of trial and error. The laws affecting Indians were kind of made up as we went along – most came about as a RESPONSE to something that was happening right then. Since Indian law evolved out of the relationship between conquerors and conquests, it’s different than other kinds of law because there were a lot of issues to sort out.

First – what rights did the Indians have to the land? Second – What power did the US have over the Indians and their land? Third – what duties and obligations were there on both sides?

They had to start somewhere, right? First the court had to start hammering out these issues, before they could start moving on to the technical stuff.

Indian law and policy in dealing with Indians pre-dates this country. Before we became the US of A, there were already treaties and agreements and rules that were followed because, if you will recall, ENGLAND staked claim to this part of the world, first. And before, during and after England claimed this land, there was conflict with the Spaniards, the French, and other European groups as everyone wanted to claim this new land.

So the first matter that they all realized had to be addressed, before even discussing the Indians, was which of these European nations had the right to the land. (I am not saying they did have ANY right to the land, I am saying this from the perspective of the explorers and settlers – they thought they did, and at the time, they saw the Indians kind of as in their way… a problem that had to be dealt with.)

The “Old World” had some interesting rationales to justify their presence and taking of the land that is now America. Back in the 1400’s, the Pope was seen, through a major part of Europe, as the gatekeeper to heaven – he was seen as having divine spiritual jurisdiction over everyone’s soul – he alone could decide whether they would go to heaven or not. He permitted explorers to go out and look for new lands, in order to bring the word of God to these lands and Christianize them. Back in those days, the natives of these new lands were seen as “heathens” because they didn’t know about the Christian god… and therefore, Europe and the Christianized world didn’t really see them as equals, but as savages. Hardly better than the animals that also populated these strange lands. It was seen as “natural law” that the “advanced” Christians should go forth and bring the word of God to these lands, and deliver ownership of these lands (and their riches) to the Church.

So, in the 1400’s, the King of Portugal asked the Pope for permission to conquer the Canary islands off Africa. He convinced the pope that the people there were essentially animals, because they didn’t have a form of writing, they didn’t live in houses, they didn’t wear the same clothes as Europeans. The pope bought it, and issued the “Romanus Pontifex” which was a legal edict, binding on all Christian kings and monarchs, confirming that Portugal had the exclusive right to colonize not just the Canary islands, but other parts of Africa as well.

At this point, the kings of other countries looked at each other, and thought, “now what?” They wanted to explore and conquer distant lands as well, increasing THEIR kingdoms, too. At this point, Christopher Columbus approached the king of Spain, and pointed out that since Africa was off-limits, they should sail WEST across the ocean, looking for a shorter route to India. As a bonus, any undiscovered lands out there in the west, could be claimed for Spain.

The king told him to go for it. And so Columbus apparently thought that any lands he came across that were not claimed by other “civilized” nations, but which were inhabited by indigenous people only, were his for the taking, under the guise of the Spanish Crown. If the inhabitants diverged from Christian civilization, they and their lands were fair game.

In his explorations, Columbus came across a lot of land in the west Indies (the Caribbean) and the mainland of the US. He came back to the King of Spain, and told him of the “savages” that lived there, and the king of Spain shipped off a letter to the pope, telling him of these unchristianized people. Pope Alexander the 6th then issued edicts giving Columbus and Spain the right to colonize these lands and conquer them for Spain. (I wonder if the fact that this pope was a Spaniard AND stood to profit from the conquests had anything to do with it… hmmm)

So once the pope had issued edicts giving Spain the title to these lands, it was pretty much locked and loaded for the Spaniards. They had title over ALL OTHER EUROPEAN COUNTRIES and civilized nations. The other countries were not going to mess with this right because they all feared the power of the pope… nobody wanted to cross him and risk getting excommunicated and kicked out of the Kingdom of Heaven, right?

The areas Spain conquered were often decimated. They use the term “black legend” to refer to the destruction the Spaniards brought. American Historian Angie Debo estimates that in the first 20 years of colonial administration in Hispaniola, which was one of the first colonies in the Caribbean, the population of the indigenous people tanked from 250,000 to 15,000. IN TWENTY YEARS! In other places, the indigenous population disappeared completely.

Want to know a funny fact? Spain, in order not to feel guilty about what they were doing to these people, had their lawyers (yes, us lawyers are like cockroaches, we have been around forever) draft up a document called the “requerimiento” that the king said had to be read to ALL of the groups of natives before the Spaniards tried to conquer them. This document was unbelievable.
It said, in essence, that god had given charge of the whole human race to the pope, who had donated these lands to the king and queen of Spain. The Indians were told this was all put down in the pope’s bulls, or writings, and they could see them if they wished. (like the Indians cared what some far-off jerk was ordering… what right did he have to do this? Who was this GOD that gave him the power?) Then the requerimiento explained what was expected of the indigenous people… they were told to take some time and think about this, and to acknowledge that the pope was the leader and ruler and superior of the WHOLE WORLD, and they had to consent to letting these new leaders preach to them about God. The requerimiento went on to tell them what would happen if they didn’t follow these new orders… they were told that with “god’s help” the Spaniards would forcefully enter the new lands, enslave them, take their belongings… and that if anyone who was killed in the doing of this, it was the fault of the natives.

Sometimes these turkeys even tried to get these natives to SIGN an agreement that they understood and agreed to these requirements.

Now the lawyers of Spain had written this long document out, and the Spanish conquerors were supposed to read this to the locals first. In reality, they often whispered it under their breath right before they attacked a sleeping Indian village at night, or read it a mile away from the people before they snuck up and attacked them. And even they DID read it to these people… the INDIGENOUS DID NOT SPEAK SPANISH! Most of them had no idea what the hell these crazy Spaniards were going on about!

But, it made the king of Spain feel better, and made him feel that they were fairly dealing with the native population. Charming, isn’t it?

Saturday, March 24, 2007

American Indians Today - Assimilation of NDNs

Whew... sorry for the delay folks, I left town over spring break and just got back!

Well, here I am... this is the last section of the PREVIEW of everything to come - after this post, we're heading back to the beginning, and we're going to start with the Doctrine of Discovery, and then move on from there in more detail on everything.

Okay, the Assimilation of Indians.
Federal indian policy has always dealt with one core issue... whether and to what extent the US should permit/encourage/FORCE the assimilation of indians into the main society of the United States. Should we have reservations? Why or why not?

Obviously, there are a lot of reasons the US would love to see the indians assimilated, or blended into the mainstream; losing their special status and rights. For starters, the indian land and resources (like timber, minerals, the LAND they could be taxing) are pretty strong incentives.

A lot of non-indians who don't know much about the issue presume indians would benefit by leaving tribal life behind and sharing in the larger society. This mindset is kind of a spinoff of the same "we are better than them" mentality you're going to see in the next post about the doctrine of discovery. People who don't know any indians don't GET the reality of the situation, and that's one of the things I hope this blog can educate people on. It's so easy to tell another group of people to conform to your culture if you don't understand where they are "coming from" or what their life and values and culture are really about. And people who don't know squat about indians should probably not be making decisions regarding the future of indians... but on the other side, indians should probably not be telling everyone who is not full-blooded indian that they don't know what they are talking about and not hear what they have to say.

Both sides (or actually the many sides.. this is not an issue where people fall into ONLY camp 1 or camp 2, there are MANY different viewpoints and perspectives and mindsets and levels of experience and education) should listen to the other. That's all I am saying. I wish people would all hear each other out and THINK about what they learn before they make decisions. We need to stop making uninformed decisions and all learn as much about an issue as we can before acting, EVERYWHERE in life.

Ok, enough of the sermon. Let's get on with the basics...
Contemporary indian reservations have a pretty bad rep. They're hotbeds of extreme poverty. The poorest area in the nation, I believe, is the Pine Ridge Rez in South Dakota, for example. There are all sorts of other social problems like alcohol and drug issues and violence. Many indians are reliant on welfare.
So why are indians so determined to hold on to these reservations? Justice Black, of the Supreme Court summed it up best in Federal Power Commission v. Tuscarora Indian Nation - (362 u.s. 99, 142). He said...

"It may be hard for us to understand why these Indians cling so tenaciously to their lands and traditional tribal way of life. The record does not leave the impression that the lands of their reservation are the most fertile, the landscape the most beautiful or their homes the most splendid specimens of architecture. But this is their home -- their ancestral home. There, they, their children, and their forebears were born. They, too, have their memories and their loves. Some things are worth more than money and the costs of a new enterprise."

Should indian reservations and tribes be kept wholly separate from the rest of the country? That's a topic we're going to get into. And in a nutshell, the answer should vary for EVERY INDIAN, depending on not only circumstances, but their person. Indians should not have to live in poverty just because they choose to remain in a unified group. But how much should they mix with the non-indian world? And should they leave the rez when they become adults? Or should they stay? And how much should the US be giving to the tribes or reservations? How much control should they have over these reservations, especially if they are paying for them?

Lots of questions, people, but we have a shortage of answers. I'd love to hear your thoughts...

Hang tight, folks, it was spring break so I haven't been adding stuff lately... but I will today or tomorrow!

Wednesday, March 14, 2007

Clarification part 2

Ok, so my friend Joe replied to the clarification I posted a few days ago... here was what he wrote...

Yes I like that, that does explain and clarify some confusion about sovereignty, not only for non-natives, but natives as well. It is still crazy to me that a tribal person says "Hey that can't do that, we are a sovereign nation" well, yes, you are a soveriegn nation, but your soveriegnty is limited and over ruled by the US Government. In actuality, Indian Nations never signed any treaty giving up their soveriegnty, any part of their sovereignty, congress enacted laws that gave plenary power to the US. So in actuality we never gave up these rights as a seperate nation, but some will say that we gave up that right when we allowed the US to enact policy that gave Native Peoples citizenship in the US.

Close, but not quite, Joe. As I get into more depth in the next few posts, once I am through this damned background info (I am going through the textbook and with my professor outline so I figured I better stick to the order they put stuff in as I learn it or we're ALL gonna get confused) you'll see a much more detailed explanation than that.

True, indian nations are sovereign, or more accurately, "quasi-sovereign." The United States actually refers to tribes more along the lines of "domestic dependent nations" and generally refers to their "sovereignty" in many areas, but does not concede that the nations are complete, absolute sovereign nations.
Congress did decide that the US had plenary power over the tribes, but that was not when it all began. As you will see when I get into more depth, (I know I keep saying that but it's just to explain why I haven't hit it all yet) the US relies on the "doctrine of discovery" in dealing with the tribes. Basically, the logic there is "we discovered you savages, so we have control." Yes, the US had to recognize the tribes as sovereign nations in order to be able to legitimately make treaties with them, (if the US didn't see them as capable of giving permission, then what good is their permission gonna do for the person getting permission?) but then after that, the US sharply scaled back their powers based on "sovereignty."

Essentially, even before the "plenary powers" were enacted by congress, the US recognized the tribes as dependent nations, with limited scope to their sovereignty. We'll discuss this in the cases, starting with Johnson v. McIntosh and moving through a whole bunch of cases over the next few months... but the bottom line is, although the tribes "never gave up those rights", the US didn't see the tribes as HAVING those rights to give up in the first place. The INDIANS may have felt they had those powers, the US (and England before them) never recognized them to start with.

Ok, "some will say we gave up that right when we allowed the US to enact policy that gave native people citizenship in the US" but those people would be totally wrong. Although a handful of natives got citizenship for varying reasons earlier, when the US officially gave indians citizenship, there was already a looooong history of having determined and limited the extent of indian control over their separate nations, and congress had recognized this starting much, much earlier. The first Supreme Court cases delineating the extent of tribal sovereignty started in the early 1800's, and a century later, when the indians were officially granted citizenship as a group, plenary power and most of the issues concerning sovereignty had already been settled. So the indians, in effect, gave up nothing when the Citizenship was extended to them, at least nothing that hadn't already been taken away.

Anyone else have thoughts on this? Leave a comment here or email me.

NDNs today - economic development overview

There is an emphasis these days on developing tribal financial activities that are not directly tied to federal support - a push, of sorts, to have indians take matters into their own hands and start making some money.

Indians have WON in litigation establishing tribal governmental powers and the right to tax, as well as winning the limitiation, in some areas, of the reach of state tax and regulatory laws in indian country. Indians are, basically, expanding both their sovereign and entrepreneurial fucntions.

Rapidly growing numbers of tribes are engaging in major business ventures - just look at the Seminole Hard Rock Casino in Florida ( Casinos are a major part of indian tribe economic development, but by no means are they they only method. Factories, plants, industrial parks, and more are bringing the money in.

In 2002, gambling revenues from tribal gaming generated about 14.5 BILLION dollars (yes, with a B)and a lot of tribes are "giving back," so to speak. The largest donation ever given to the Smithsonian Museum was from the Pequot Indians - 10 million bucks to help establish a National Museum of the American Indian. And under a memorandum of understanding (or a hostage agreement, if you prefer) the tribe contributes 25% of their revenue from slot machine operations to the state of Connecticut - which was over 160 million dollars to the state in fiscal year 2002 alone. That's a lot of smackers!

Economic development, which we are gonna get into in more depth later, is a major force in NDN law and policy and a great predictor for the future of indian people. As such, the job of indian governments to help expand this will be important: according to the textbook, "the Indian governments need to be able to operate with business skills, and they willneed to make decisions about overall economic development consistent with the goals and ambitions of their people - so a lot of it is planning for the future....Indian sovereignty is being redefined according to what an NDN nation can actually do. It is no longer limited to discussions about state v. NDN jurisdiction, but rather around material issues and strategies designated by the NDN population and carried out by increasingly able NDN entities. The social implications are enormous. If NDN nations have the power to make decisions about their future, they can choose educational paths which cause their languages, history, arts and culture to survive and can therefore perpetuate the very elements which define them as distinct peoples."

That was an important quote. Read it again. What is the bottom line? Considerations for what to do with indian resources and economic development are MUCH more complex than with normal business decisions. More is at stake. More is dependent on the outcome. Including, to some extent, the future of indian country.

NDNs today - NDN land and resources

Wow... I just wrote out the most eloquent beautiful discussion of Indian land and resources... and I posted it to the wrong blog. So all my humor readers who like my other blog for it's silliness sure got a morningful of confusion. And I lost it when I realized my mistake and deleted it quick. So let's start over again.

Indian land and resources - Indians as a group may be "have nots" in many areas, even when compared to other minorities... but there are 2 main exceptions. Land and natural resources. As you are going to see later, a TON of NDN law deals with lands and resources and the jurisdiction over them i.e. who gets to sell it or use it.

According to the BIA figures released most lately, NDN tribes and individuals own about 55.7 million acres of land - an INCREASE of 3.8 million acres since 1980. This includes 45.7 million acres of tribal trust land and 10.1 million acres of tribal trust allotments still held by NDNs or their descendants.

A big reason the number is growing is because some of the tribes are getting financially stronger, particularly due to casino revenue, and are using some of that cash to buy back neighboring (often, ancestral) lands that were given away or treatied away long ago.

ONe group, for example, called the Native American Land Conservancy, is dedicated to buying and preserving land sacred to native americans. For more info, go to to check them out.

In all, Native American groups own about 4.2 percent of the land in the US.

There are 2 different methods of ownership. Often a tribe will hold all land in trust, but in many cases, as we will discuss later, the land was partitioned off and sold in plots during the allotment era. This land is owned by the individual indian, and whether or not it is considered part of a reservation varies according to the situation. Again, more on that later. There is also land on some reservations that is owned in fee title (absolute ownership) by non-NDNs. So any given area can be a patchwork of reservation/trust land/individual allotments/land owned by non-indians on a rez.. and as you will see, figuring out who has jurisdiction over an area or who pays taxes or can be prosecuted by who for what crimes... all can hinge on what kind of land it is and who is involved.

In some rezes, non-indian land predominates - it is in the majority. For example, 46% of the land within the boundaries of the Swinomish Rez in Washington is owned by non-indians, and 20 percent of the Indian trust land (beyond that 46%) is leased to non-NDNs. The whites GREATLY outnumber the NDNs on that rez. Weird, huh?

The 5 states with the most Indian land are Arizona, with a combined total of 20,718,125 acres of land, New Mexico, with 8,438,954 acres of land, Montana, with about 5.5 million acres, South Dakota with about 5 million acres, and Washington, with 2.637 million acres.

Tribes usually have jurisdiction over indian country - which includes all land within the exterior boundaries of a rez, and as such, their jurisdiction may extend to an area miuch larger than the area actually in Indian ownership. Questions arise - and we will get to this later - about who handles problems occurring on a rez on land owned within that rez by a non-indian. Who do you think should have jurisdiction? the US feds, the state, or the rez.. if the land is within a rez but not owned by an indian or tribal member?

Ok, moving on... Tribes own about 6.3 million acres of commercial timber land - or about 1% of the nation's total. Tribes are increasingly taking over the management of their timber lands.

And another 43 million acres, or 77% of NDN land is classified as range land, a LOT of which has been majorly overgrazed by animals. IN addition, most of that has been leased to non-NDNs. There are another 3 million acres of "indian" agricultural land, and again, the most productive of this is leased to non-NDNs. Because they often got crappy deals in negotiating prices, the benefits given to the NDNs for this land have often been pretty skimpy.

Indians also have extensive rights to water across the nation, (the Winters Doctrine - more on this in a few posts) and the indian water rights are technically usually superior to those of everyone else, but the problem is in enforcing that and in getting the infrastructure together to actually GET the water to where they want it.

There are also a minority of tribes that hold land that is rich in resources (think minerals for mining, etc.) and they are just starting to really get into developing their subsurface mineral rights and take advantage of this. But even here, the problem is that the "royalties" non-indians pay for the right to mine are collected by the MMS - minerals management services - which is part of the Department of the Interior, and is distributed to tribes and individuals by the BIA. Indian mineral holders earned more than 185 million dollars in royalties from mineral revenues in 2000.

And indians also have pretty strong fish and wildlife resources, and several tribes are now starting to get into recreational development - i.e. skiing lodges, etc, and developing things like the walkway over the Grand Canyon. (
This sort of recreational development of all sorts is also going to be an important source of money for the indians in the future.

Ok, next time? We'll talk more about economic development, and then hit on the tricky overview of "assimilation of indians"... then on to the cool stuff - CASES!