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 different minorities, displays the increase and fall in our democratic faith," wrote Felix S. Cohen, an early professional in Indian felony affairs. during this booklet, David Wilkins charts the "fall in our democratic religion" via fifteen landmark instances within which the ideal courtroom considerably curtailed Indian rights. He bargains compelling proof that superb court docket justices selectively used precedents and proof, either historic and modern, to reach at judgements that experience undermined tribal sovereignty, legitimated substantial tribal land losses, sanctioned the diminishment of Indian spiritual rights, and curtailed different rights besides. those case studies--and their implications for all minority groups--make vital and troubling studying at a time whilst the excellent court docket is on the vortex of political and ethical advancements which are redefining the character of yank executive, reworking the connection among the criminal and political branches, and changing the very which means of federalism.
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Additional resources for American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice
Nevertheless, for both the allegedly ‘‘wild’’ tribes and the so-called civilized tribes, a fundamental belief prevailed among most of the federal policymakers, including the Court, that all Indians could and should be culturally ‘‘elevated’’ with proper education, training, and spiritual (read: Christian) guidance. , Christian missionaries funded by the federal government, boarding schools, reservations, and the individualization of tribal lands and funds) were developed by the Congress and sanctioned by the Supreme Court to impose this cultural transformation.
The mask worn by federalizing agents viewed the United States as the core unit such that nonfederal entities must either be absorbed or vanquished. ’’ In masking the legal process, Law was clearly an agent of national unity. During the late 1800s and well into the twentieth century, the Court rendered a number of decisions indicating a clear intent to dilute the extraconstitutional status of tribes by unilaterally declaring them ‘‘wards’’ of the government and disavowing their separate, independent status.
14 Thompson’s dissent played a pivotal role in Marshall’s Worcester (1832) opinion, which recognized the political distinctiveness of the Cherokee Nation and the supremacy of Indian treaties over state laws. 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.