![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
What??????
Aug. 26th, 2008 11:02 amMaybe it's a bit late to be furious, but I just found out about the 1823 Supreme Court case Johnson v M'intosh.
This piece of racist, imperialistic *sh*t* has never been overturned and in fact is relied on for later court decisions. Arrgh!!! My regard for the Supreme Court is now no higher than for other branches of government. I am ashamed.
Why am I so upset? Because this case not only twists history and incorporates self-serving stereotypes to provide a legal justification for the appropriation of Native lands, it does so using circular logic that wouldn't stand up in a good debate, and is thoroughly unworthy of the highest court in the land. And which pulls the foundations out from under those who acted honorably.
Details: One person bought land from tribes in 1773 and 1775. These were transactions authorized by the entire tribe, and the tribe shared the money from the sale. Later the state of Virginia sold the same land to someone else. The question before the Supreme Court was, which title was valid?
The Supreme Court ruled that land title purchased from Indians was not valid because the land was "discovered" by European explorers, and since two valid titles could not coexist, the Indians only held a right to occupancy, not a right to conveyable title.
The European legal principle of discovery stemmed from a Papal decree which allowed Christian nations to claim any land owned by non-Christian peoples. That this principle applied was 'proven' by the fact that the European nations recognized each other's claims and had made treaties with each other that conveyed land back and forth as if their title was valid.
Treaties with the Indian nations were dismissed as unnecessary PR gimmicks; something to pacify the tribes, but nothing with any legal standing. The fact that land claims in the northeast, based on title purchased from the Native tribes, had been recognized by the United States, was seen as a historical anomaly (in Rhode Island and Pennsylvania, and other parts of the Northeast, the original colonial founders insisted on purchasing land upon which to plant the colony). The implication was that the purchase was unnecessary and somewhat regrettable, since it muddied the clean application of the so-called law of discovery. The fact that those colonies then sought European grants for the same land was seen as proof that the purchase from the tribes did not actually convey title.
In dismissing Indian treaties, Justice John Marshall exhibited an appalling lack of knowledge of the history of colonization, and promulgates the worst stereotypes. He characterized the Indian nations as being composed of nomadic hunters, little different from deer or game animals who live on but do not own the land. He says they had no government to speak of -- notwithstanding the fact that the earliest explorers spoke of kings and nations, and that our founding fathers acknowledged the debt the US constitution owed to political practices of (at least) the Iroquois confederacy.
OK. Maybe you are not as surprised as I am. Sure, I've heard these ideas before. But I've always assumed that they were the ill-reasoned, ill-informed, historically inaccurate, and racist views of those who needed to justify the crimes of their ancestors. Instead, I find they are ill-reasoned, ill-informed, historically inaccurate, and racist judgements that have unfortunately (under the doctrine of stare decisis become part of our legal system and a basis for further judicial travesties.
Arrgh!!
This piece of racist, imperialistic *sh*t* has never been overturned and in fact is relied on for later court decisions. Arrgh!!! My regard for the Supreme Court is now no higher than for other branches of government. I am ashamed.
Why am I so upset? Because this case not only twists history and incorporates self-serving stereotypes to provide a legal justification for the appropriation of Native lands, it does so using circular logic that wouldn't stand up in a good debate, and is thoroughly unworthy of the highest court in the land. And which pulls the foundations out from under those who acted honorably.
Details: One person bought land from tribes in 1773 and 1775. These were transactions authorized by the entire tribe, and the tribe shared the money from the sale. Later the state of Virginia sold the same land to someone else. The question before the Supreme Court was, which title was valid?
The Supreme Court ruled that land title purchased from Indians was not valid because the land was "discovered" by European explorers, and since two valid titles could not coexist, the Indians only held a right to occupancy, not a right to conveyable title.
The European legal principle of discovery stemmed from a Papal decree which allowed Christian nations to claim any land owned by non-Christian peoples. That this principle applied was 'proven' by the fact that the European nations recognized each other's claims and had made treaties with each other that conveyed land back and forth as if their title was valid.
Treaties with the Indian nations were dismissed as unnecessary PR gimmicks; something to pacify the tribes, but nothing with any legal standing. The fact that land claims in the northeast, based on title purchased from the Native tribes, had been recognized by the United States, was seen as a historical anomaly (in Rhode Island and Pennsylvania, and other parts of the Northeast, the original colonial founders insisted on purchasing land upon which to plant the colony). The implication was that the purchase was unnecessary and somewhat regrettable, since it muddied the clean application of the so-called law of discovery. The fact that those colonies then sought European grants for the same land was seen as proof that the purchase from the tribes did not actually convey title.
In dismissing Indian treaties, Justice John Marshall exhibited an appalling lack of knowledge of the history of colonization, and promulgates the worst stereotypes. He characterized the Indian nations as being composed of nomadic hunters, little different from deer or game animals who live on but do not own the land. He says they had no government to speak of -- notwithstanding the fact that the earliest explorers spoke of kings and nations, and that our founding fathers acknowledged the debt the US constitution owed to political practices of (at least) the Iroquois confederacy.
OK. Maybe you are not as surprised as I am. Sure, I've heard these ideas before. But I've always assumed that they were the ill-reasoned, ill-informed, historically inaccurate, and racist views of those who needed to justify the crimes of their ancestors. Instead, I find they are ill-reasoned, ill-informed, historically inaccurate, and racist judgements that have unfortunately (under the doctrine of stare decisis become part of our legal system and a basis for further judicial travesties.
Arrgh!!
