American Indian Law

The Pokagon Band of Potawatomi Indians has been a part of Chicago since its founding. In very public expressions of indigeneity, they have refused to hide in plain sight or assimilate. Instead, throughout the city’s history, the Pokagon Potawatomi Indians have openly and aggressively expressed their refusal to be marginalized or forgotten—and in doing so, they have contributed to the fabric and history of the city.

Imprints: The Pokagon Band of Potawatomi Indians and the City of Chicago examines the ways some Pokagon Potawatomi tribal members have maintained a distinct Native identity, their rejection of assimilation into the mainstream, and their desire for inclusion in the larger contemporary society without forfeiting their “Indianness.” Mindful that contact is never a one-way street, Low also examines the ways in which experiences in Chicago have influenced the Pokagon Potawatomi. Imprints continues the recent scholarship on the urban Indian experience before as well as after World War II.

A merican Indian tribal engagement in the various activities championed by the National Historic Preservation Act (NHPA; 54 USC 300101 et seq.) has come about primarily as a result of the consultation first required by the Act's implementing regulations in 1986, reaffirmed by amendments to the Act in 1992 (54 USC 302706). 1 In this chapter, I choose to focus on issues with which tribes are concerned day-to-day when participating in the cultural resources management process for which Section 106 (54 USC 306108) of the Act, and associated implementing regulations (36 CFR 800), provide a framework. For tribes, our entanglement with Section 106 usually comes via the process that consultation provides us to influence how historic properties are searched for, how they are evaluated, and how adverse effects on them can be avoided or mitigated.

In 1924 Congress passed legislation giving blanket citizenship to all Native Americans who had not received citizenship before under other processes. This article discusses the reasoning behind the act and how Progressives in Congress urged the legislation forward.

The last three decades have witnessed a remarkable resurgence of the American Indian nations in the United States. The foundation of this resurgence has been the exercise of self-government -sovereignty -by the more than 560 federally-recognized tribes in the U.S. In this study, we explore legal and economic dimensions of current perceptions of and debates over the nature and extent of tribal self-rule in the United States. Our objective is to clarify and illuminate by distinguishing between myth and reality. We address key threads of thought and assumption that pervade, accurately or inaccurately, discussions in the public policy arena. What emerges is a picture in which tribes do exercise substantial, albeit limited, sovereignty. This sovereignty is not a set of "special" rights. Rather, its roots lie in the fact that Indian nations pre-exist the United States and their sovereignty has been diminished, but not terminated. Tribal sovereignty is recognized and protected by the U.S. Constitution, legal precedent, and treaties, as well as applicable principles of human rights.

Sovereignty is classically defined as supreme legal authority. The concept was formulated by sixteenth century legal philosopher Jean Bodin and elaborated by many theorists since then. One basic controversy has been whether to trace supreme authority to the people or to a "divine right" of rulers. Another has been about the relation between legal authority and political-economic power which may influence or dominate law. The definition of sovereignty in federal Indian law partakes of both ancient controversies. An ambiguous concept from the start, surrounded by disagreement, sovereignty is perhaps most cryptic in federal Indian law.

"All the Real Indians Died Off," a new book by Roxanne Dunbar-Ortiz and Dina Gilio-Whitaker, takes aim at what the authors call "myths about Native Americans."  The Authors' Note makes clear they are using the word in its negative sense. They refer to "myths and stereotypes," saying the "narratives behind those myths" are "lies" and "misperceptions." On the other hand, the antidote they offer to the false narratives involves "reclaiming stolen pasts through scholarship, storytelling, relationship building, and acknowledging our ancestry."  "All the Real Indians Died Off" thus posits countering stories with other stories, with one set of stories said to be "a more accurate history." This leaves us with a second definitional question: What do we mean by "history"? "All the Real Indians Died Off" will hit the market in time for this year's debates about celebrating or mourning the arrival of Columbus and his boat people from their ocean-crossing journey to this continent.

The movement, in Canada and the United States, to establish and maintain postsecondary institutions controlled by Indigenous peoples is part of broader Indigenous North American struggles to effect positive change on current circumstances and contribute to the creation of a truly liberating education in the face of historical and continuing colonial systems of marginalization. This article compares these processes in Canada and the United States, using an historical approach to a systems-level analysis to explore the past and present structures and purposes of these Indigenous postsecondary institutions as well as the past and present policies that shape them, with reference to the ways in which these institutions grow from and contribute to the decolonization of Indigenous communities.

Late 20th century Native America presents the same conflicts as the late 18th century: land and water rights, hunting and fishing, religious freedom, criminal and civil jurisdiction. In fact, these conflicts are typical of relations between indigenous peoples and colonizers on the American continent as a whole beginning over five centuries ago.
The persistence of fundamental issues over a period of 500 years demonstrates the ongoing existence of Native Americans as distinct peoples, despite repeated attempts to make them disappear. America was not a virgin land when boat people from across the Atlantic arrived. From the earliest days to the present, Native peoples have been a presence in America. The existence of Native Americans as peoples -- as self-governing groups, rather than simply individuals sharing personal and cultural traits -- is what sets them apart from other "minorities" in America. This difference warrants theoretical and historical overview, so that the variety of particular issues and controversies active at any given time or place can be understood in an overall perspective.

The  principle  on  which  dying

declaration    are  admitted  in  evidence  is

indicated in legal maxim.

    "nemo moriturus proesumitur mentiri"

which means, a man will not meet his Maker with

a lie in his mouth. It is on the principle that

when a man faces death, there is no reason for

him to falsely    allege any fact as to the cause

of his death. Secondly, if a dying declaration

is    to  be  excluded,  it  will  result  in

miscarriage of justice as he may be the only

eye witness in a serious crime, and    exclusion


of  the statement would leave the Court without

a scrap of evidence. While considering the

dying declaration it is worthwhile to remember

that    accused has no power to cross examination

the declarant, which is essential for eliciting

the truth. It is for such reason the Court is

to be    on guard to find  whether declaration is

a result of either tutoring, prompting or a

product    of  imagination. The  Court  must  be

satisfied that the deceased    was in a fit state

of mind    and capable of disclosing the fact.

The principles to be followed in

appreciating    a  dying  declaration  are  well

settled. There is no rule of law that dying

declaration    cannot  be  acted  upon  without

corroboration.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

PRESENT:

THE HONOURABLE MR.JUSTICE M.SASIDHARAN NAMBIAR
&
THE  HONOURABLE MR.JUSTICE  P.BHAVADASAN

TUESDAY, THE 3RD DAY OF JULY 2012

CRL.A.No. 108 of 2009


        BIJU @ JOSEPH
     
Vs
        STATE OF KERALA

Disclosure of even true private facts has the
tendency to disturb a person's tranquility. It may
generate many complexes in him and may even
lead to psychological problems. He may,
thereafter, have a disturbed life all through. In the
face of these potentialities, and as already held
by this Court in its various decisions referred to
above, the Right of Privacy is an essential
component of right to life envisaged by Article 21.
The 'right, however, is not absolute and may be
lawfully restricted for the prevention of crime,
disorder or protection of health or morals or
protection of rights and freedom of others."
Aspect about admissibility of evidence with reference to
provisions of Indian Evidence Act, 1872 has indeed been diluted by
Section 14 of the Family Court Act. The question, which still arises in the
present case, is whether conversation tape recorded by the husband
without wife's consent or without her knowledge, can be received in
evidence and be made use of against her? That question has to be
answered in an affirmative 'no', as recording of such conversation had
breached her “right to privacy”, one of the facets of her 'right to liberty'
enshrined under Article 21 of the Constitution of India. The exception to
privileged communication between husband and wife carved out in
Section 122 of the Indian Evidence Act, which enables one spouse to
compel another to disclose any communication made to him/her during
marriage by him/her, may be available to such spouse in variety of other
situations, but if such communication is a tape recorded conversation,
without the knowledge of the other spouse, it cannot be, admissible in
evidence or otherwise received in evidence. The argument that this
would defeat right of fair trial of the petitioner-husband, proceed on the
fallacious assumption of sanctimony of the method used in such
recording and in that process, ignores the right of fair trial of the
respondent-wife. In a case like present one, husband cannot be, in the
name of producing evidence, allowed to wash dirty linen openly in the
Court proceedings so as to malign the wife by producing clandestine
recording of their conversation.
In view of above, this Court is inclined to concur with the
view taken by Andhra Pradesh High Court in Smt. Rayala M.
Bhuvaneswari(supra) that recorded conversation between the
petitioner and the respondent, even if true, cannot be admissible in
evidence and that the respondent-wife cannot be forced to undergo
voice test and expert cannot be asked to compare CDs, which
conversation has been denied by her.

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR.
ORDER
S.B. CIVIL WRIT PETITION NO. 14726/2013
WITH
S.B. CIVIL MISC. STAY APPLICATION NO. 12315/2013
VISHAL KAUSHIK
VS.
FAMILY COURT & ANOTHER.
DATE OF ORDER : 26.05.2015
HON'BLE MR. JUSTICE MOHAMMAD RAFIQ

America was not a virgin land when the United States was formed, nor previously in the colonial era. From the earliest days to the present, Native Americans have been a factor in American politics. In an even wider perspective, current Native American issues reflect the scope and content of relations between indigenous peoples and colonizers on the continent as a whole beginning over five centuries ago: Wampanoag and Narraganset fishermen charged with violations of Massachusetts and Rhode Island regulations for fishing in ocean bays where their peoples have fished since time immemorial; United States antagonism to traditional leadership of Hopi and Western Shoshone peoples; Alaska native land title ignored or denied; native spirituality interfered with or destroyed by government action; civil and criminal jurisdiction over Native Americans on their own lands the subject of heated controversy. These are only a very small sample of 20th century conflicts that can also be dated in the 17th, 18th, and 19th centuries.

This study examines the history of Indian-settler legal relations in Indiana, from the state’s pre-territorial period to the late-nineteenth century. Through a variety of interdisciplinary sources and methods, the author constructs a broad narrative on the evolution and co-existence of Native and non-Native customary legal systems in the region, focusing on matters related to marriage, property rights, and testimony. The primary thesis—which emphasizes reciprocally formative relations, rather than persistent conflict—suggests that Indiana’s pre-modern legal past involved an ad hoc yet highly effective process of cultural brokerage, reciprocity and inter-personal accommodation. That the American Indians lost much of their self-governing status following the period of contact is clear; however, a closer look at the ways in which nations historically defined, exercised, asserted, and shared jurisdiction, reveals a more intricate story of influence, authority, and concession. During the French and British colonial and American territorial periods, settler society adjusted to and often accommodated Native concepts of law and justice. Through a complex order of social obligations and community-based enforcement mechanisms, a shared set of rules and jurisdictional practices merged, forming a hybrid system of Indian-settler norms that bound these individuals across the cultural divide. When Indiana entered the Union in 1816, legal pluralism defined jurisdictional practice. However, with the nineteenth-century rise of legal positivism—the idea of law as the sole command of the nation-state, a sovereign entity vested with exclusive authority—territorial jurisdiction and legal uniformity became guiding principles. Many jurists viewed the informal, pre-existing custom-based regulatory structures with contempt. With the shift to a state-centered legal order, lawmakers established strict standards for recognizing the law of the “other,” ultimately rejecting the status of the tribes as equal sovereigns and forcing them to concede jurisdiction to the settler polity.

Pemerintah federal Amerika Serikat didirikan pada tahun 1790 dan dianggap sebagai federasi nasional modern pertama di dunia. Meskipun demikian, rincian federalisme Amerika telah menjadi perdebatan sejak diundangkannya Konstitusi Amerika Serikat, di mana beberapa pihak mengargumentasikan kekuasan nasional secara luas, sedangkan pihak lain menafsirkan pasal-pasal Konstitusi tentang kekuasaan pemerintah nasional secara harfiah.

Peter Mattiessen's In the Spirit of Crazy Horse is a momentous work. It was published in a period of renewed agitation about Native sovereignty and treaty claims more than a decade after the last flowering of public interest in American Indians. The book is a detailed tome of investigative reporting on a topic of inflammatory significance—the deaths of two FBI agents in a shoot-out on Sioux territory. The Indian wars have not ended. Range-land is now less important than the minerals beneath it, and the cowboys have been supplemented by the forces of giant energy corporations. The overall coordination of the war is still in the hands of government officials whose vision of the world is dominated by the quest for ever greater accumulation of material wealth. In this context, a shoot-out between Indians and FBI agents at Pine Ridge reservation in 1975 becomes a battle and not simply a crime. Leonard Peltier, the Indian convicted of killing the agents, becomes something more than an ordinary prisoner. Indeed, the only "ordinary" event is the death of an Indian man in the shoot-out: his killer has never even been sought by the law. NOTE: On the first page of my essay, the proofreader at the journal blew my probably too abstruse reference to Christianity by “correcting” “Calvary” to “Cavalry” in my text “Hooray! The C…. is coming!"

Birthed from within the "cage of oppression" and crafted during the mid-20th century's call for global social change, Indigenous postsecondary institutions arose as one path for addressing some of the educational, sociocultural, political, and economic needs of Indigenous peoples. Few studies, however, have sought to understand these institutions and their contexts in comparison across the Canada-United States border. This thesis draws from exploratory document-based research with reference to supplementary interviews in order to discuss some of the intriguing similarities and differences between the structures and struggles of these institutions. The primary findings show that Indigenous institutions in both countries are successful despite being underfunded, but institutions in Canada have even more difficulty accessing funding and accreditation/recognition. The hope is that this research can contribute to critical dialogue and informed action not only in relation to Indigenous institutions, but also in relation to the educational initiatives of marginalized peoples more broadly.

Equality arguments are used today to attack policies furthering Native rights on many fronts, from tribal jurisdiction over non-Indian abusers to efforts to protect salmon populations in the Pacific Northwest.  In 2018, these efforts won a potentially devastating victory when a federal district court held the Indian Child Welfare Act unconstitutional in Brackeen v. Zinke. Such attacks align with a modern movement challenging many claims by disadvantaged groups as unfair special rights.  In American Indian law and policy, however, these arguments have a long history, dating almost to the founding of the United States. Tribal removal, confinement on reservations, involuntary allotment and boarding schools, tribal termination—all were justified, in part, as necessary to achieve individual Indian equality.  The results of these policies, justified as equalizing the savage, are now recognized as savage themselves, impoverishing Native people and denying them fundamental rights.

Many, including some tribal advocates, respond to equality-based attacks by arguing that sovereignty, cultural difference, or some other value trumps the value of equality in Indian law and policy. This Article, in contrast, reveals the egalitarian roots of demands for tribal rights.  It argues that such rights are in fact demands to recognize the equality of tribes as governments, so the proper comparison is to rights of other sovereign groups. This governmental equality yardstick, moreover, has an even older historical pedigree and has repeatedly triumphed when U.S. policy bent toward justice.

The governmental rubric does not lead to an easy metric for equality claims—tribal nations and their people are far too entwined with non-Native governments and communities for that.  Additional principles, including individual equality, the history and context of modern disputes, and the impact of particular measures on the most vulnerable, are relevant as well.  To show how these principles apply, I conclude by examining modern conflicts, including those over the Indian Child Welfare Act, Cherokee freedmen citizenship, and off-reservation fishing rights.

The interesting—and complicated—thing about colonialism is that it encompasses not just politics and economics, but consciousness. Critical theorists such as Frantz Fanon and Paulo Freire have pointed this out. How do we apply these thoughts to the situation of American Indians today? The problems start with the notion that the United States is not a colonial power, or that the colonial era of American history is over. These notions are sometimes stated openly, more often concealed as assumptions behind our rhetoric.

В своей книге кандидат культурологии О.Е. Данчевская исследует современный этап развития индейских культур и приходит к выводу, что он характеризуется стремлением индейцев улучшить своё положение путём дальнейшего развития своих культурных традиций, получения образования, включающего изучение родного языка, подъёма собственной активности и их надеждой на понимание и поддержку государства.
  Проводя собственные интервью американских индейцев, О.Е. Данчевская подчёркивает, что индейские культуры Северной Америки, начиная со второй половины XX века, переживают стадию возрождения, характеризующуюся ростом их этнического самосознания, политической и культурной активности, поиском культурной идентичности. Автор рассматривает особенности американской культурной политики, базирующейся на идее мультикультурализма, но вместе с тем выделяет существенные препятствия в достижении индивидуального культурного развития индейских этносов.
  В монографии поэтапно прослеживается тот факт, что автохтонному населению США, несмотря на аккультурацию и в значительной степени ассимиляцию с евро-американской культурой, удалось сохранить свою индивидуальность.
  Книга адресована всем, кто интересуется индеанистикой, культурологией, этнологией.

The United Auburn Indian Community (UAIC) Tribal Historic Preservation Committee and NATHPO are convening a two-day NAGPRA training to be held October 28-29, 2013, at UAIC's Thunder Valley Casino Resort in Lincoln, California. THPOs and Tribal, government, or museum agency representatives are welcome to attend, however space is limited. We encourage you to forward this invitation to any agency representatives who you feel would benefit from additional NAGPRA training. The first day focuses on basic NAGPRA training. The second day focuses on current NAGPRA litigation and hands-on practice.

It was Submitted at the Bar that no binding precedent is available on the aspect whether personal presence of the accused is necessary to consider a prayer for composition. After discussions at the Bar and after some research, the learned Counsel for the petitioner himself brings to my notice the decision in Mathew v. State of Kerala 1986 KLT 128, where Justice S. Padmanabhan, in paragraph 8, has observed thus in his clear and lucid style:
Where a particular offence is compound-able by a particular person it is not even necessary for the Court to insist on a joint petition by that person and the accused. Even if the person who is entitled to compound the offence by himself files a petition before Court stating that the matter has been compounded and the case may be closed the Court will be bound to accept the same and close the case except in appropriate cases where it is felt that permission to compound the offence will have to be refused.
Those observations perfectly support the inclusions that I have reached.
22. I shall now attempt to narrate my conclusions. They are:
(1) Composition under Section 320, Cr. P. C. is a unilateral act.
(2) The victim (person shown in column 3 of Section 320(1) and 320(2)) can himself make an application for composition.
(3) It is not necessary for the Court to insist on a joint application for composition. The victim can of course make a joint application along with the accused.
(4) It is not necessary for the Court to insist on the personal appearance of the accused before Court to consider an application for composition under Section 320, Cr. P.C.
(5) The mere fact that the Court has already issued a non-bailable warrant against the accused and that is pending is no reason for the Court not to proceed further with the case. All steps for which personal presence of the accused is not necessary can be continued even if the non-bailable warrant remains unexecuted and the accused has not personally appeared.

Kerala High Court
Y.P. Baiju vs State Of Kerala And Ors. on 30 October, 2007
Equivalent citations: 2008 CriLJ 928

Bench: R Basant
- See more at: http://www.lawweb.in/2016/04/whether-compounding-of-offence-is.html?#sthash.VyscPU2m.dpuf

It is not unusual to find John Marshall lauded as the "greatest judicial advocate of Indian sovereignty." Three seminal Supreme Court opinions authored by him -- Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832) -- are frequently said to have established legal "protection" for American Indians.
What is in question here is whether Marshall's opinions in the Indian cases were an expression of "concern for the Indians" or something quite different. The critical perspective developed here will focus on a close textual analysis of the first of the three cases, Johnson v. McIntosh, which produced a legal theory and a jurisprudential basis for all that followed.

The United States has engaged with Indigenous nations on a government-to-government basis via federal treaties representing substantial international commitments since the origins of the republic. The first treaties sent to the Senate for ratification under the Constitution of 1789 were treaties with Indigenous nations. Treaties with Indigenous nations provided the means by which approximately one billion acres of land entered the national domain of the United States prior to 1900, at an average price of seventy-five cents per acre – the United States confiscated or claimed another billion acres of Indigenous land without compensation. Despite subsequent efforts of American federal authorities to alter these arrangements, the weight of evidence indicates that the relationship remains primarily one of a nation-to-nation association. Integration of the history of federal relations with Indigenous nations with American foreign relations history sheds important new light on the fundamental linkages between these seemingly distinct state practices from the beginnings of the American republic.

Resumen: Establecido como herramienta para controlar a los funcionarios de la administración colonial, los juicios de residencia comenzaron su andadura casi al mismo tiempo que la presencia española en América. Sin embargo, factores de diversa índole -legales, clientelares y políticos-convirtieron estos mecanismos en inútiles a finales del siglo XVII. Así pues, tomando como muestra a tres magistrados de la Audiencia de Lima, analizamos la ineficacia de los juicios de residencia.

Inter-governmental relationships involving tribes must be respectful of tribal sovereignty and native people’s rights, yet most non-Native public managers are not educated about this and thus are unprepared to engage constructively in collaboration with tribal governments. This chapter provides a basic orientation to tribal sovereignty, self-determination, reservations and ceded territories, and Public Law 280, and illuminates their relevance to nearly any policy domain, including child welfare, education, economic development, land use and planning, environmental stewardship, and law enforcement. While there are positive examples of constructive and mutually respectful synergy, unfortunately there are also many instances of antagonistic failures to collaborate, with damaging consequences for Native and non-Native communities. I illustrate these complex dynamics through a single policy issue – roadway safety in reservations – before concluding with a summary of a few key takeaways for exploring collaboration with tribal governments.

KEYWORDS
● Tribal sovereignty
● Indigenous governance
● Tribes and intergovernmental relationships
● Native self-determination
● American Indian reservations
● Roadway safety in reservations

When one conceives of possession, it appears in the strict sense that the concept of possession is basically connected to "actus of physical control and custody". Attributing this meaning in the strict sense would be understanding the factum of possession in a narrow sense. With the passage of time there has been a gradual widening of the concept and the quintessential meaning of the word possession. The classical theory of English law on the term "possession" is fundamentally dominated by Savigny- ian "corpus" and "animus" doctrine. Distinction has also been made in "possession in fact" and "possession in law" and sometimes between "corporeal possession" and "possession of right" which is called "incorporeal possession". Thus, there is a degree of flexibility in the use of the said term and that is why the word possession can be usefully defined and understood with reference to the contextual purpose for the said expression. The word possession may have one meaning in one connection and another meaning in another.  The term "possession" consists of two elements. First, it refers to the corpus or the physical control and the second, it refers to the animus or intent which has reference to exercise of the said control.

The formative influence of Christian doctrines on U.S. law was once clear and unambiguous. Religious dogmas of fifteenth-century Vatican papal bulls were deployed as the foundation of property law, nationhood, and federal Indian law in the early nineteenth century. Court decisions bound U.S. law to the world of Christendom and Christian imperialism. This process was not hidden or mysterious, nor was it a conspiracy among judges and priests. It was long-range planning for the takeover of a continent and a hemisphere. It was the theory that guided colonial practices. It is the story of Pagans in the Promised Land.

United States " federal Indian law " consists of a body of rules rooted in the colonial doctrine of " Christian discovery. " Viewed through the lens of Carl Schmitt's concept of " sovereign ban, " Christian discovery creates a " state of exception, " placing Native Peoples both inside and outside the constitutional order of the United States and simultaneously constituting the claim of U.S. sovereignty. The instability inherent in this double performance emerges as the " paradox of sovereignty. " Native self-determination efforts appear as lèse-majesté – " insults to sovereignty " – heretical acts challenging Christian colonial domination.
[New Diversities • Volume 19, No. 2, 2017
http://newdiversities.mmg.mpg.de/wp-content/uploads/2018/01/2017_19-02_06_Errico.pdf ]

A recent swearing-in of new attorneys to the Navajo Nation Bar Association brought back memories of my days in the start-up of Dinébe'iiná Náhiiłna be Aga'diit'ahii, Navajo Legal Services. Hearing Navajo spoken again was exhilarating.
A highlight was when the new attorneys recited the oath of office, Naaltsoos bik' eh go 'ádee hadisdziih. It begins with an affirmation to "support, obey, and defend" the law, and includes other familiar phrases, such as to "adhere to the rules of professional responsibility." It starts to differ from oaths typical to state and federal bars with an affirmation to "respect the courts, the judges and peacemakers." I don't know of any non-Native attorney oath to respect peacemakers.
The big difference in the Navajo Nation oath, which sets it apart from every state and federal oath, is the concluding affirmation: "With this, I will make life good."

"Apenas treinta años luego de la adopción de la estructura federal presidencial que aún rige en Estados Unidos, el Tribunal Supremo estadounidense expresó que el Gobierno era “reconocido por todos, como uno de poderes enumerados...que sólo [podía] ejercer los poderes conferidos en él.” Sin embargo, la historia política, social y económica de la nación estadounidense alteró el cauce del pensamiento legal prevaleciente, para dirigirlo hacia el reconocimiento inequívoco de poderes plenarios al servicio del gobierno federal, en particular en cuanto a sus relaciones con los inmigrantes, con sus territorios y dependencias, y con los pueblos indígenas con los que comparten el territorio nacional. En cuanto a las relaciones constitucionales con los últimos dos sujetos, las similitudes respecto al andamiaje doctrinal y las estructuras políticas y jurídicas creadas para su implementación son escalofriantes. El presente escrito examina el desarrollo y la aplicación jurisprudencial de la doctrina de los poderes plenarios en las relaciones constitucionales del gobierno estadounidense con los pueblos indígenas bajo su jurisdicción y con Puerto Rico. Se plantea que no sólo ambos sujetos han recibido tratamiento similar por parte del Tribunal Supremo de Estados Unidos, sino que la justificación teórica y doctrinal para avalar la aplicación de la doctrina de los poderes plenarios del Gobierno federal sobre estas poblaciones encuentra su origen en fundamentos extraconstitucionales, como la desacreditada doctrina del descubrimiento, mediante la cual sólo las naciones 'civilizadas' pueden 'descubrir' y adquirir jurisdicción sobre determinados terrenos y sus habitantes. Por ello, y ante la constante reiteración del Tribunal Supremo estadounidense de la aplicación de la referida doctrina de los poderes plenarios en estos contextos, se concluye que en la búsqueda de alternativas para dar fin a las relaciones coloniales entre Estados Unidos y tanto los pueblos indígenas como los territorios, estos últimos no pueden considerar a los tribunales federales como foros en los cuales podrán vindicar derechos relacionados al principio de la autodeterminación.

Just thirty years after the adoption of the United State's federal presidential structure, the U.S. Supreme Court said the government was "acknowledged by all, to be one of enumerated powers"; that is, "that it can exercise only the powers granted to it." However, the political, social and economic history of the American nation altered the course of that prevailing legal thought, moving it towards the unequivocal recognition of the plenary powers of the federal government, particularly with regard to its relations with immigrants, with its territories and dependencies, and the indigenous nations with whom they share the country. As per the constitutional relations with the last two subjects, the similarities regarding the doctrinal and political and legal structures created for its implementation are significant. This paper examines the development and jurisprudential application of the doctrine of the plenary powers in the U.S. government's constitutional relations with indigenous peoples and Puerto Rico. It argues that not only both subjects received similar treatment by the United States Supreme Court, but that the theoretical and doctrinal justifications in support of the application of the plenary powers doctrine in these contexts have its roots in the discredited doctrine of discovery, under which only 'civilized' nations can 'discover' and acquire jurisdiction over territories and its inhabitants. Additionally, and given the constant reiteration of Supreme Court precedent in these areas, I aver that in the search for alternatives to end the colonial relationship between the U.S. and both indigenous Nations and territories, federal courts cannot be considered as forums in which rights related to the principle of self-determination may be vindicated. "

"Making Indian Law" is an effort to explain the Hualapai case from a Hualapai perspective, but the book is more than that: It is an effort to position the Hualapai case as a turning point in federal Indian law. If McMillen had delved more deeply, he would have seen the case as a way station, not a turning point, and could have given us an example of what needs to be done to reach a true turning point.

A series of columns in Indian Country Today analyzing federal Indian 'trust doctrine' and the foundation cases of federal Indian law in the wake of the U.S. Supreme Court decision denying compensation to the Navajo Nation for decades of underpaid coal extraction pursuant to federally approved leases [United States v. Navajo Nation, (2009)]:

"Navajo Nation, known as an 'Indian tribe'" - ICT, April 15, 2009

"Can federal Indian 'trust' be trusted?" - ICT, April 22, 2009

"The sands of federal 'trust'" - ICT, April 29, 2009

"Sovereignty paths not taken" - ICT, May 29, 2009

"Advocacy and change in federal Indian law" - ICT, June 26, 2009

The individual columns are accessible in Indian Country Today archives https://indiancountrytoday.com/author/peter-d-errico . Here, in sequential order, is the full text of the columns in a single document.

Robert Alexander's new book, "The Northwest Ordinance: Constitutional Politics and the Theft of Indian Land" (McFarland, April 2017), exposes the murky dealings leading to the 1787 Northwest Ordinance—"An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio"—a mechanism for extending U.S. jurisdiction into the interior of the continent beyond the original thirteen colonies. Alexander's research points to "an intimate link between the two original sins of the [United States]: the enslavement of millions of African-American men, women and children—and the theft of millions of acres of Native land." The book displays how northern anti-slavery and southern pro-slavery interests managed to agree that Black people, as slaves, would count in the new constitution as three-fifths of a person, and that Native lands would be seized.

Standing Rock should never agree with the idea that the Black Hills are "under federal ownership," nor should they accept the U.S. assertion that it cannot return lands it has invaded and claimed for its own. The time has come to stand up against the centuries-long violation of Indigenous Peoples' lands by any government claiming the "right" of "discovery." In 1958, Standing Rock lawyers did not challenge the U.S. claim. As the judge said, "the authority of Congress…is not questioned." Standing Rock should not make that mistake again!