By David E. Wilkins
"Like the miner's canary, the Indian marks the shift from clean air to poison gasoline in our political surroundings; and our remedy of Indians, much more than our therapy of alternative minorities, displays the increase and fall in our democratic faith," wrote Felix S. Cohen, an early specialist in Indian felony affairs. during this booklet, David Wilkins charts the "fall in our democratic religion" via fifteen landmark situations within which the superb courtroom considerably curtailed Indian rights. He deals compelling proof that ultimate courtroom justices selectively used precedents and evidence, either old and modern, to reach at judgements that experience undermined tribal sovereignty, legitimated sizeable tribal land losses, sanctioned the diminishment of Indian non secular rights, and curtailed different rights besides. those case studies--and their implications for all minority groups--make very important and troubling interpreting at a time whilst the ultimate courtroom is on the vortex of political and ethical advancements which are redefining the character of yank govt, remodeling the connection among the criminal and political branches, and changing the very which means of federalism.
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Additional info for American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice
Instead, the Marshall Court raised and then proceeded to answer an entirely different and far more troubling question—especially since the Indian tribes were not parties in the suit—as to whether tribes had a title that could be conveyed to whomever they chose. By generating this question and then answering it negatively, Marshall’s court, in the process of this unanimous opinion, both created and recreated a set of legal rationalizations to justify the reduction of Indian rights without allowing any room for listening to the Indian voice.
Ogden in 1824, plenary power has often been used by the federal courts in cases Name /T5723/T5723_CH02 26 05/24/01 06:03AM Plate # 0-Composite american indian sovereignty and the supreme court dealing with the extent of federal powers. ’’ 28 He chooses to ignore the fact that the federal Bill of Rights is problematic as applied to tribal nations because tribal governments were not created under the auspices of the Constitution. While the 1968 Indian Civil Rights Act 29 applied certain portions of the Constitutional Bill of Rights to tribal governments in regard to their plenary activities affecting tribal citizens and other reservation residents, the Bill of Rights does not protect tribes or their members from congressional actions aimed at reducing tribal sovereignty, political rights, or aboriginal Indian lands.
50 Marshall’s retrospective vision of ‘‘discovery’’—the deﬁnitive principle in the case—created a ‘‘landlord-tenant’’ relationship between the federal government and the Indian tribes. ’’ 51 Several wellworn quotes from the opinion give clear evidence of this unilateral transmutation of Indian property and political rights, based solely on the Court’s own self-generated notions. In this case, the Court was will- Name /T5723/T5723_CH02 32 05/24/01 06:03AM Plate # 0-Composite american indian sovereignty and the supreme court ing to violate even Euro-American individual property rights to place itself in a superior political position relative to tribal nations who were not even parties to the dispute.