Wednesday, April 09, 2008

American Indian Law Bibliography: Yes, Custer Died for Our Sins


Here is the bibliography for American Indian Law. What follows is meant to prod and provoke you, dear reader, to cultivate an ardent if only amateur interest in this domain of law as well as in the peoples to whom (in the first instance) it applies.

Easy knowledge about Indians is a historical tradition.
---Vine Deloria, Jr.

European explorers and invaders discovered an inhabited land.
---Francis Jennings

Many early Spanish publicists and theologians, such as Francisco de Vitoria, Dominic Soto, Bartolomé de Las Casas, and Baltasar Ayala, stressed that non-Christian peoples constituted sovereign ‘nations.’ These writers challenged both the validity of European claims to sovereignty based solely on ‘discovery’ and the justice of rights based on conquest. They generally agreed that non-Christian lands were not empty [vacuum domicilium or terra nullius] and, therefore, that they were not open to acquisition by Europeans.
---John H. Bodley

Read the rest of this post . . . .[T]he Swiss diplomat Emmerich von Vattel expanded [the] theory of international law [from Vitoria and Grotius] by classifying political communities of indigenous people as sovereign nation-states entitled to the respect of other nations.
---Jill Norgren

Aboriginal Indian society appears to have been far less violent than seventeenth-century European society. The wasting wars so prominent among Indians in historic times were a factor of adaptation to European civilization.
---Francis Jennings

Despite the views of earlier theorists contemporaneous with a practice of treaty making between indigenous peoples and European powers, positivist theorists argued that the European states and their offspring within the ‘Family of Nations’ never had considered the aboriginal peoples capable of possessing rights on the international plane.
---S. James Anaya

The Indian tribes had their own laws, evolved through generations of living together, to solve the ordinary problems of social conflict. This legal tradition is very rich, reflecting the great diversity of Indian peoples in North America.
---Sidney L. Harring

In the colonial period the Indians sold an enormous amount of land to the English, but in the end they were poorer than when they began. They sold much of the land under the overt or latent threats of English expropriation and ecological destruction. They sold some under the misapprehension that the English intended to share it with them. The English defrauded them out of some. And much of the land was sold by individuals who lacked clear authority to sell. All of these features conspired to keep land prices low, probably much lower than the prices at which the English bought and sold the same land among themselves.
---Stuart Banner

In a series of ‘treaties’ dictated to the Indians in the mid-1780s, the Confederation government confiscated Indian land without paying any compensation.
---Stuart Banner

When the new republic of the United States established diplomatic relations with the Cherokee after the War of Independence, the relations—for example, treaties—were explicitly described as relations between nations.
---Jill Norgren

American Indian tribes are sovereign nations. Their sovereignty is inherent, pre- or extra-constitutional, and is explicitly recognized in the Constitution.
---David E. Wilkins and K. Tsianina Lomawaima

Before the nineteenth century, removal was more a by-product of Indian land purchases than an articulated government policy. That changed with the Louisiana Purchase.
---Stuart Banner

The idea that Congress could abrogate Indian treaties was not devised as a method of harming the Indians. It followed from the well-established doctrine that Congress had the power to abrogate treaties with foreign countries. Such a power was necessary, American lawyers realized, because otherwise Congress would be unable to declare war (which was often inconsistent with existing treaties) or to respond in other ways to changing aspects of the international climate. By the late nineteenth century, lawyers were accustomed to thinking of international treaties as capable of being repealed, like any other laws, by a subsequent act of Congress. The justices instinctively placed Indian treaties in the same category.
---Stuart Banner

But if Indian treaties differed in some respects from treaties with foreign countries, they were also similar in many ways. [….] Perhaps most important to a legally trained mind, Indian treaties, like foreign treaties, were, in a formal sense, agreements between sovereigns. Although Indian tribes had largely lost the power associated with real sovereignty, in the law they were still sovereign entities.
---Stuart Banner

In the fifty years between the Cherokee cases, Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), when the U.S. Supreme Court had first set out the ‘domestic dependent nations’ framework for the place of the Indian tribes in relation to the United States, and Crow Dog (1883), the Court had failed to give significant effect to tribal sovereignty, permitting both the states and the federal government to erode the rights of the Indian tribes.
---Sidney L. Harring

It must be remembered…that the majority of American Indian criminal cases, like Corn Tassel’s trial [State v. Tassel (1830)], are unreported. During the nineteenth century, thousands of Indians were hailed into local courts, tried, and sentenced to prison or hung. Were it not for his famous and futile appeal, financed by his tribe, which had previously hired one of the best lawyers in the country to defend tribal interests, Corn Tassel would have hung without legal notice. With great local prejudice, little money, and few lawyers willing to make jurisdictional appeals, most Indians served their state sentences. The reported cases provide only the barest outline of this injustice.
---Sydney L. Harring

By an act of Congress in 1871, the United States declared, contrary to some 350 years of international legal opinion that it would no longer make treaties with Indian tribes as if they constituted sovereign nations.
---John H. Bodley

U.S. policymakers’ decisions to permit settlers to continue pushing back the Indian frontier was the most direct cause of the Indian wars. [….] [T]he Indians fought wars against whites to enforce their law and protect their legal rights against white illegality.
---Sidney L. Harring

Law was used to perpetrate murder and land fraud of all sorts, and the legal rights of American Indians were ignored by state and federal courts. The product of the great concern with the ‘legality’ of nineteenth century federal Indian policy was genocide: more than 90 percent of all Native Americans died, and most native land was alienated, the balance occupied by Indians but ‘owned’ by the United States. Indian people were under the control of Indian agents, political hacks sent out from Washington to manage the lives of native peoples and backed by the army.
---Sidney L. Harring

The doctrine of tribal sovereignty reemerged as a dominant doctrine in federal Indian law in Williams v. Lee, 358 U.S. 217 (1959), brought back to the federal courts not by the BIA or the states but by the tribes.
---Sidney L. Harring

The problem is that unless the treaty-making process is continued in some formal manner, the treaty-making clause does not apply and there is no protection under the Constitution for Indian tribes at all. Tribal rights of self-government predate the Constitution and derive not from the American people or the Constitution but from the inherent sovereignty of a given tribe. When a controversy involves the relationship of the federal government to the tribes, nothing compels the United States to deal justly with the tribe because the nature of the relationship is political; it is diplomatic and without appeal to the family of nations because Indians are now considered a domestic matter of the United States.
---Vine Deloria, Jr. and David E. Wilkins

When there is a conflict between a preexisting treaty right and a later congressional or state statute, the courts must uphold the federal government’s treaty obligations to tribes, based on the trust doctrine and the good faith test. The only exception to this rule would be in a case where congress has passed a specific repealing or terminating statute. The principal task of the Supreme Court in sorting out alleged irreconcilable differences between treaty provisions and statutory provisions, then, should be to uphold the treaty and to interpret the statute in conformity with the context in which the treaty was negotiated.
--- David E. Wilkins and K. Tsianina Lomawaima

…[T]he rule of law in federal Indian law has been under siege for over two decades. The recent decisions [e.g., ‘in the areas of abortion rights, standing to sue, and school desegregation’] that appear to be a shock to some observers pale in comparison to the Supreme Court’s decades-long assault on the rule of law in federal Indian cases. …[T]he Court has run roughshod over tribal sovereignty and Indian rights, with nary a peep of warning or objection from the larger legal establishment.
---Matthew L.M. Fletcher

Inconstancy, indeterminacy, and variability characterize the uneven ground of federal Indian policy.
---David E. Wilkins and K. Tsianina Lomawaima

…[V]irtually all elements of Indian affairs can be traced to the decision of the United States to recognize Indian tribes as political entities and to make Indian law and policy based on this political status. [….] In short, Indian law is not race law and courts are remiss if they apply race law principles to Indian law cases.
---Matthew L.M. Fletcher

Indigenous peoples around the world are united by a common concern with control of land, preventing the exploitation of natural resources to the detriment of indigenous rights and ways of life, and cultural survival or preservation; all of which cohere in the overarching theme of self-determination.
---Paul Keal

[O]ne of the complaints of indigenous peoples is precisely that the state of which they are a part have deprived, and continue to deprive, them of political, cultural, and property rights. Consequently, many indigenous people seek recognition of an international personality that will support their claims against states over issues not already covered in existing human rights instruments.
---Paul Keal

Above all else, commercial civilization is a culture of consumption, and in this respect it differs most strikingly from small-scale cultures.
---John H. Bodley

The most powerful cultures have always assumed a natural right to exploit the world’s resources wherever they find them, regardless of the prior claims of indigenous populations. Arguing for the efficiency and survival of the fittest, early colonialists elevated this ‘right’ to the level of an ethical and legal principles that could be invoked to justify the elimination of any cultures that were not making ‘effective’ [today: economically rational] use of their resources.
---John H. Bodley

Indigenous peoples have ceased to be mere objects of the discussion of their rights and have become real participants in an extensive multilateral dialogue that has also engaged states, nongovernmental organizations (NGOs), and independent experts, a dialogue facilitated by human rights organs of international institutions.
---S. James Anaya

A special, affirmative duty under international law enjoins states to adopt the measures necessary, through their various competent institutions, to give practical meaning to indigenous peoples’ rights.
---S. James Anaya

There are four distinct and mutually compatible justifications for developing international legal rights to intrastate autonomy for indigenous peoples. First, the creation of intrastate autonomy regimes for indigenous peoples can be required as a matter of rectificatory justice, in order to restore the self-governance of which these peoples were deprived by colonization. Second, intrastate autonomy can provide a non-paternalistic mechanism for protecting indigenous individuals from violations of their individual human rights and for counteracting the ongoing detrimental effects of past violations of their individual human rights or those of their ancestors. Third, it may be necessary to establish or augment institutions of self-government for indigenous groups in order to implement settlement of land claims in cases where lands that were held in common were lost due to treaty violations. Fourth, rectificatory justice can require measures to protect indigenous peoples from the detrimental effects of the disruption of the indigenous customary law that defined and supported their ways of life. However, the best remedy may not be to incorporate indigenous customary law into the state’s legal system. Instead, equipping indigenous peoples with powers of self-government that include the right to make new laws for themselves better accords with the fact that their cultures are dynamic and should not be frozen by attempts to restore customary law that no longer best serve their interests.
---Allen Buchanan

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