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 therapy of Indians, much more than our therapy of different minorities, displays the increase and fall in our democratic faith," wrote Felix S. Cohen, an early specialist in Indian felony affairs. during this publication, David Wilkins charts the "fall in our democratic religion" via fifteen landmark instances within which the splendid courtroom considerably curtailed Indian rights. He deals compelling proof that excellent courtroom justices selectively used precedents and evidence, either old and modern, to reach at judgements that experience undermined tribal sovereignty, legitimated giant tribal land losses, sanctioned the diminishment of Indian non secular rights, and curtailed different rights in addition. those case studies--and their implications for all minority groups--make very important and troubling analyzing at a time whilst the splendid courtroom is on the vortex of political and ethical advancements which are redefining the character of yankee govt, reworking the connection among the felony and political branches, and changing the very that means of federalism.
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Extra resources for American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice
McIntosh (1823) A ‘‘ P E C U L I A R ’’ P O L I T I C A L R E L AT I O N S H I P : THE M ASKING BEGINS The cardinal distinguishing features of tribal nations are their reserved and inherent sovereign rights based on their separate, if unequal, political status. This was afﬁrmed in hundreds of treaties and agreements, acknowledged in the Constitution’s Commerce Clause, recognized in thousands of pieces of federal legislation, and expounded upon in hundreds of federal court opinions. The bilateral political relations that en- Name /T5723/T5723_CH02 28 05/24/01 06:03AM Plate # 0-Composite american indian sovereignty and the supreme court sued between the various Indian tribes and the colonizing European nations, and later the ﬂedgling United States, were considered essential by each of the European and European-derived nations in their quest for one or more of the following: trade goods, unconverted tribal souls, and geographical and political hegemony.
The description of tribes as ‘‘governments’’ stems from their status as pg 22 # 4 Name /T5723/T5723_CH02 05/24/01 06:03AM Plate # 0-Composite defining tribes, lands, sovereignty pg 23 # 5 23 the original sovereigns of America with whom various European states and, later, the United States, engaged in binding treaties and agreements. S. Constitution. The Constitution mentions Indians three times. In two speciﬁc instances Indians are excluded from ofﬁcial population enumerations for determining congressional representatives (Article I, section 2, clause 3 ‘‘.
Again, the Congress’s commerce power serves as a prime example, as does the treaty-making process, both of which preclude involvement of the states. 33 Typically, these disclaimers consisted of provisions in which the state declared that it would never attempt to tax Indian lands or property without both tribal and federal consent and without having ﬁrst amended its own constitution. ’’ 34 This deﬁnition includes two subcategories: a) power which is not limited by other textual constitutional provisions; and b) power which is unlimited regarding congressional objectives.