Indigenous Peoples and Indigenous Peoples and International Law - Sfu

Indigenous Peoples and Indigenous Peoples and International Law - Sfu

Crim429/FNST429 Indigenous Peoples and International Law: Royal Proclamation, Marshall Decisions The Royal Proclamation 1763 The Marshall Decisions...

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Crim429/FNST429

Indigenous Peoples and International Law: Royal Proclamation, Marshall Decisions

The Royal Proclamation 1763

The Marshall Decisions Johnson v M’Intosh 1823

Johnson v M’Intosh 1823 Johnson

M’Intosh

• Piankeshaw Indians held title to the land • RP may have expressed the will of the King, but Indians not British citizens • Colonies had govts, therefore Brit law did not affect him • Virginia law passed after the purchase

• Indians still living in a “state of nature” • Law of Nations denies Indian right to sovereignty • “Discovery” is the source of title; only one sovereign • Piankeshaw Indians may once have been sovereign, but no longer; “perpetual inhabitants” with “diminished rights”

Johnson v M’Intosh 1823 • “Is it within the power of the Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country?” • “Doctrine Doctrine of discovery discovery” does not in itself bestow sovereignty; it was a mutual agreement among nations • Indians had title as “occupants,” but right to sovereignty is a diminished right; can’t “own” land; only use/occupy • Discovery gave discoverer right to negotiate and to extinguish because to leave the land to the Indians was to leave it a wilderness.

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The Marshall Decisions Cherokee Nation v Georgia 1831

Cherokee Nation v Georgia 1831 • The Decision: – While the Cherokee may once have been an independent nation signing treaties, they lost it, having gone from “protection” protection to “dependence” dependence – Now surrounded by the US; another country coming in would be an invasion – Cherokee now a “domestic dependent nation.” Relation to the US “resembles that of a ward to his guardian.” – “If it be true that the Cherokee Nation have rights, this is not the tribunal in which those rights are to be asserted.”

Cherokee Nation v Georgia 1831 • The question: Is the Cherokee Nation a foreign state in the sense in which that term is used in the Constitution? • Court splits into three factions: – Cherokee are sovereign so ereign autonomous a tonomo s nations under nder the “protection” of the United States – Cherokee are “so low in the grade of organized society” that it is ridiculous to speak of them as a nation on a par with the US – Because legislation elsewhere distinguishes between “foreign states” and “Indian Nations,” the two must be different

The Marshall Decisions Worcester v Georgia 1832

Worcester v Georgia 1832 • Doctrine of discovery again. An agreement between nations to avoid conflict; gave title against other European governments which might be consummated by possession, g to negotiate. g i.e.,, ggave right • Cherokee had signed treaties; Georgia had no right to make laws that over-rode agreements between Cherokee and US • Cherokee had rights of “possession, use and occupancy” but no sovereignty; had agreed to be under the “protection” of the US. Only US could create laws re the Cherokee • Cherokee thrilled, but not for long

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