American Indian Sovereignty and the U.S. Supreme Court: The by David E. Wilkins

By David E. Wilkins

"Like the miner's canary, the Indian marks the shift from clean air to poison fuel in our political surroundings; and our remedy of Indians, much more than our remedy 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 e-book, David Wilkins charts the "fall in our democratic religion" via fifteen landmark situations during which the preferrred courtroom considerably curtailed Indian rights. He deals compelling proof that superb courtroom justices selectively used precedents and proof, either historic and modern, to reach at judgements that experience undermined tribal sovereignty, legitimated immense tribal land losses, sanctioned the diminishment of Indian non secular rights, and curtailed different rights to boot. those case studies--and their implications for all minority groups--make very important and troubling examining at a time whilst the excellent court docket is on the vortex of political and ethical advancements which are redefining the character of yank govt, reworking 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

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51 The Supreme Court, however, often chose to deny or alter indigenous reality by legitimating federal and, in some cases, state, political goals which aimed at the eradication or transformation of indigenous differentness through the indeterminate language of the law. This study is divided into seven chapters. Chapter 2 analyzes three cases, Johnson v. McIntosh, United States v. Rogers, and The Cherokee Tobacco case. Thematically, these three opinions dealt with aboriginal land title, defined the political status of tribes, provided justification for the notion of manifest destiny, and established the historic precedent that Indian treaties could be unilaterally overridden despite objections by any tribal nation.

White society’s exercise of power over Indian tribes received the sanction of the Rule of Law in Johnson v. ’’ 68 A solid argument can be made 69 that Johnson was implicitly overruled by two later cases, Worcester v. Georgia (1832) and especially Mitchel v. S. (1835). The fact remains, however, that this decision is still regularly cited by commentators and, more importantly, relied upon as ‘‘good’’ precedent by the Supreme Court, as will become evident in the discussion of later cases involving jurisdiction and land claims.

This concept entails the soul of what is deemed a constitutional impasse with, on the one hand, the federal government acknowledging the sovereignty of American Indian tribal governments, and, on the other hand, extending its selfdescribed politically superior position over tribes. There is considerable disagreement among scholars and federal lawmakers on the nature of plenary power. 26 First cited by the Supreme Court in the seminal case Gibbons v. 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.

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