na heritage williams nalsa poster.txt

“…[P]ower is war, a war continued by other means… The relations of power that function in a society such as ours essentially rest upon a definite relation of forces that is established at a determinate, historically specifiable moment, in war and by war. Furthermore, if it is true that political power puts an end to war, that it installs, or tries to install, the reign of peace in civil society, this by no means implies that it suspends the effects of war or neutralizes the disequilibrium revealed in the final battle. The role of political power, on this hypothesis, is perpetually to reinscribe this relation through a form of unspoken warfare; to reinscribe it in social institutions, in economic inequalities, in language, in the bodies themselves of each and everyone of us.”

Michel Foucault, “Two Lectures” in Power/Knowledge

Michel Foucault

Tee-Hit-Ton Indians v. United States (1955)

JUSTICE REED:

“…The line of cases adjudicating Indian rights on American soil leads to the conclusion that Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the Government without compensation. Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty in return for blankets, food and trinkets, it was not a sale but the conqueror’s will that deprived them of their land.”

“…For most of its existence both as a European colony and as an independent nation, the U.S. was a racial dictatorship. From 1607 to 1865—258 years—most non-whites were firmly eliminated from the sphere of politics. After the Civil War there was the brief egalitarian experiment of Reconstruction which terminated ignominiously in 1877. In its wake followed almost a century of legally sanctioned segregation and denial of the vote, nearly absolute in the South and much of the Southwest, less effective in the North and far West, but formidable in any case. These barriers fell only in the mid-1960s, a mere quarter-century ago….”

Michael Omi and Howard A. Winant Racial Formation in the United States: From the 1960s to the 1990s

LORD EDWARD COKE:

“… All infidels are in law perpetui inimici, perpetual enemies (for the law presumes not that they will be converted, that being remota potentia, a remote possibility) for between them, as with the devils, whose subjects they be, and the Christian, there is perpetual hostility, and can be no peace …a Pagan cannot have or maintain any action at all [in the King's courts].

…If a Christian King should conquer a kingdom of an infidel, and bring them under his subjection, there ipso facto the laws of the infidel are abrogated, for that they be not only against Christianity, but against the law of God and of nature, contained in the decalogue; and in that case, until certain laws be established amongst them, the King by himself, and such Judges as he shall appoint, shall judge them and their causes according to natural equity ….”

Calvin’s Case (1608)

Lord Edward Coke

(issued by King James I, April 10, 1606)

“….We, greatly commending, and graciously accepting of, their Desires for the Furtherance of so noble a Work, which may, by the Providence of Almighty God, hereafter tend to the Glory of his Divine Majesty, in propagating of Christian Religion to such People, as yet live in Darkness and miserable Ignorance of the true Knowledge and Worship of God, and may in time bring the Infidels and Savages, living in those parts, to human Civility, and to a settled and quiet Government: Do, by these our Letters Patents, graciously accept of, and agree to, their humble and well-intended Desires…”

The First Charter of Virginia

“…On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.… But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle... This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.”

Johnson v. McIntosh (1823)

CHIEF JUSTICE MARSHALL:

John Marshall

Johnson v. McIntosh (1823)

CHIEF JUSTICE MARSHALL:

“…The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. The rights thus acquired being exclusive, no other power could interpose between them.”

“…Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies. It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.”

Johnson v. McIntosh (1823) CHIEF JUSTICE MARSHALL:

Johnson v. McIntosh (1823)

CHIEF JUSTICE MARSHALL:

“…But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed…”

Chief Justice John Marshall

TREATY OF HOPEWELL WITH THE CHEROKEES (1785)

ART. 3. The said Indians for themselves, and their respective tribes and towns, do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whosoever. …

ART. 6. If any Indian or Indians, or person residing among them, or who shall take refuge in their nation, shall commit a robbery, or murder or other capital crime on any citizen of the United States, or person under their protection, the nation, or the tribe to which such offender or offenders may belong, shall be bound to deliver him or them up to be punished according to the ordinances of the United States….

ART. 7. If any citizen of the United States, or person under their protection, shall commit a robbery or murder or other capital crime, on any Indian, such offender or offenders shall be punished in the same manner as if the murder or robbery or other capital crime, had been committed on a citizen of the United States; and the punishment shall be in presence of some of the Cherokees, if any shall attend at the time and place….

ART. 9. For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians; the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper….

“…The Indians were a fierce and dangerous enemy whose love of war made them sometimes the aggressors, whose numbers and habits made them formidable, and whose cruel system of warfare seemed to justify every endeavor to remove them to a distance from civilized settlements. It was not until the adoption of our present government that respect for our own safety permitted us to give full indulgence to those principles of humanity and justice which ought always to govern our conduct towards the aborigines when this course can be pursued without exposing ourselves to the most afflicting calamities.”

Letter from Chief Justice Marshall to Justice Story (1828)

Cherokee Nation v. Georgia (1831) CHIEF JUSTICE MARSHALL:

“…Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

…They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.”

Worcester v. Georgia (1832)

CHIEF JUSTICE MARSHALL

“…But power, war, conquest, give rights, which, after possession, are conceded by the world; and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things, having glanced at their origin; because holding it in our recollection might shed some light on existing pretensions.”

“John Marshall has made his decision. Now let him enforce it.”

President Andrew Jackson

“…It seems to us that this is within the competency of Congress. These Indian tribes are the wards of the nation. They are communities dependent on the United States. Dependent largely for their daily food. Dependent for their political rights. They owe no allegiance to the States, and receive from them no protection. Because of the local ill feeling, the people of the States where they are found are often their deadliest enemies. From their very weakness and helplessness, so largely due to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this court, whenever the question has arisen.”

United States v. Kagama (1886) 

JUSTICE MILLER:

“…Conquest renders the tribe subject to the legislative power of the United States and, in substance, terminates the external powers of sovereignty of the tribe, e.g., its power to enter into treaties with foreign nations, but does not by itself affect the internal sovereignty of the tribe, i.e., its powers of local self-government”

Felix S. Cohen, Handbook of Federal Indian Law (1941)

…The plenary power of Congress to deal with the special problems of Indians is drawn both explicitly and implicitly from the Constitution itself….The Court has described the origin and nature of the special relationship:

In the exercise of the war and treaty powers, the United States overcame the Indians and took possession of their lands, sometimes by force, leaving them an uneducated, helpless and dependent people, needing protection against the selfishness of others and their own improvidence. Of necessity, the United States assumed the duty of furnishing that protection, and with it the authority to do all that was required to perform that obligation and to prepare the

Indians to take their place as independent, qualified members of the modern body politic ... Board of County Comm'rs v. Seber (1943).”

Morton v. Mancari (1974)  JUSTICE BLACKMUN:

“…Indian reservations are ‘a part of the territory of the United States.’ United States v. Rogers (1846). Indian tribes ‘hold and occupy [the reservations] with the assent of the United States, and under their authority.’ Id. Upon incorporation into the territory of the United States, the Indian tribes thereby come under the territorial sovereignty of the United States and their exercise of separate power is constrained so as not to conflict with the interests of this overriding sovereignty. ‘[T]heir rights to complete sovereignty, as independent nations [are] necessarily diminished.’ Johnson v. McIntosh (1823).

We have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States. In Johnson v. McIntosh, supra, we noted that the Indian tribes' ‘power to dispose of the soil at their own will, to whomsoever they pleased,’ was inherently lost to the overriding sovereignty of the United States. And in Cherokee Nation v. Georgia, supra, the Chief Justice observed that since Indian tribes are ‘completely under the sovereignty and dominion of the United States, ... any attempt [by foreign nations] to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.’”

Oliphant v. Suquamish Indian Tribe (1978)JUSTICE REHNQUIST:

“…Protection of territory within its external political boundaries is, of course, as central to the sovereign interests of the United States as it is to any other sovereign nation. But from the formation of the Union and the adoption of the Bill of Rights, the United States has manifested an equally great solicitude that its citizens be protected by the United States from unwarranted intrusions on their personal liberty. The power of the United States to try and criminally punish is an important manifestation of the power to restrict personal liberty. By submitting to the overriding sovereignty of the United States, Indian tribes therefore necessarily give up their power to try non-Indian citizens of the United States except in a manner acceptable to Congress. This principle would have been obvious a century ago when most Indian tribes were characterized by a ‘want of fixed laws [and] of competent tribunals of justice.’ H.R.Rep. No. 474, 23d Cong., 1st Sess., at 18 (1834). It should be no less obvious today, even though present-day Indian tribal courts embody dramatic advances over their historical antecedents.”

Oliphant v. Suquamish Indian Tribe (1978)JUSTICE REHNQUIST:

“…It is generally accepted that there is no effective review mechanism in place to police tribal courts' decisions on matters of non-tribal law, since tribal-court judgments based on state or federal law can be neither removed nor appealed to state or federal courts. The result, of course, is a risk of substantial disuniformity in the interpretation of state and federal law, a risk underscored by the fact that "[t]ribal courts are often subordinate to the political branches of tribal government," Duro, supra (quoting Cohen 334–335).”

JUSTICE SOUTER, joined by JUSTICES KENNEDY and THOMAS, concurring.

Nevada v. Hicks (2001)

“…First, the Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’

This Court has traditionally identified the Indian Commerce Clause, U.S. Const., Art. I, § 8, cl. 3, and the Treaty Clause, Art. II, § 2, cl. 2, as sources of that power. E.g., Morton v. Mancari (1974). The ‘central function of the Indian Commerce Clause,’ we have said, ‘is to provide Congress with plenary power to legislate in the field of Indian affairs.’

Moreover, ‘at least during the first century of America's national existence ... Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law.’ Cohen 208. Insofar as that is so, Congress' legislative authority would rest in part, not upon ‘affirmative grants of the Constitution,’ but upon the Constitution's adoption of preconstitutional powers necessarily inherent in any Federal Government, namely powers that this Court has described as ‘necessary concomitants of nationality.’ United States v. Curtiss–Wright Export Corp. (1936).”

United States v. Lara (2004)

JUSTICE BREYER:

“…Finally, this Court has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands. See Yankton Sioux Tribe v. United States (1986) (‘It is impossible ... to rescind the cession and restore the Indians to their former rights because the lands have been opened to settlement and large portions of them are now in the possession of innumerable innocent purchasers…’). …

…The unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led this Court in Yankton Sioux to initiate the impossibility doctrine. The city of Sherrill and Oneida County are today overwhelmingly populated by non-Indians. A checkerboard of alternating state and tribal jurisdiction in New York State-- created unilaterally at OIN’s behest--would ‘seriously burde[n] the administration of state and local governments’ and would adversely affect landowners neighboring the tribal patches. (quoting Solem v. Barlett, (1984). If OIN may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent the Tribe from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area.”

CITY OF SHERRILL, NEW YORK v. ONEIDA INDIAN NATION OF NEW YORK (2005)

JUSTICE GINSBURG:

“…Not only is regulation of fee land sale beyond the tribe’s sovereign powers, it runs the risk of subjecting nonmembers to tribal regulatory authority without commensurate consent. Tribal sovereignty, it should be remembered, is ‘a sovereignty outside the basic structure of the Constitution.’ United States v. Lara (2004) (KENNEDY, J., concurring in judgment). The Bill of Rights does not apply to Indian tribes. See Talton v. Mayes (1896). Indian courts ‘differ from traditional American courts in a number of significant respects.’ Nevada v. Hicks (2001) (SOUTER, J., concurring). And nonmembers have no part in tribal government-they have no say in the laws and regulations that govern tribal territory. Consequently, those laws and regulations may be fairly imposed on nonmembers only if the nonmember has consented, either expressly or by his actions. Even then, the regulation must stem from the tribe’s inherent sovereign authority to set conditions on entry, preserve tribal self-government, or control internal relations. See Montana.”

Plains Commerce Bank v. Long Family Land and Cattle Co. (2008)

CHIEF JUSTICE ROBERTS:

“…Racial rule can be understood as a slow and uneven historical process which has moved from dictatorship to democracy, from domination to hegemony. In this transition, hegemonic forms of racial rule—those based on consent—eventually came to supplant those based on coercion….”

Michael Omi and Howard A. Winant Racial Formation in the United States: From the 1960s to the 1990s