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 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 ebook, David Wilkins charts the "fall in our democratic religion" via fifteen landmark circumstances during which the splendid court docket considerably curtailed Indian rights. He bargains compelling facts that excellent court docket justices selectively used precedents and evidence, either ancient and modern, to reach at judgements that experience undermined tribal sovereignty, legitimated enormous tribal land losses, sanctioned the diminishment of Indian spiritual rights, and curtailed different rights to boot. those case studies--and their implications for all minority groups--make very important and troubling studying at a time while the best court docket is on the vortex of political and ethical advancements which are redefining the character of yank govt, remodeling 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
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. The assertion of congressional power over tribal lands, resources, and rights is evidence of this nationalizing effort. The three types of legal consciousness I have described are hypothetical, ideal concepts which rest on facts and assumptions that come directly from observation.
In 1789, the First Congress passed the ﬁrst thirteen statutes, of which four dealt primarily with Indian affairs and reﬂected this doctrine of exclusive congressional authority in the development of Indian policy; however, it would rest with the Supreme Court to deﬁne the political status of tribes from a federal standpoint. John Marshall, the third chief justice, and his colleagues were largely responsible for developing, in several cases 39 during the early 1800s, the legal underpinning for the tribal-federal-state relationship.
A corollary to the principle of congressional enumeration, identiﬁed by Felix S. ’’ 19 Notwithstanding the extensive historical, political, and legal data that support the extraconstitutional standing of tribal nations vis-a`-vis the federal government, tribes, as this study will show, have often found that the Supreme Court has failed to restrict federal powers that have operated to diminish the inherent rights of tribal nations. ’’ 20 Keeping in mind the extraconstitutional status of tribes, we must now direct our attention to individual Indian status; for it is in part this unique conjunction of rights—individual and collective—that further distinguishes Indians from the rest of the American populace.