The State of Native America, Ch2 Study Guide

International Law and Politics

Toward a Right to Self-Determination for Indigenous Peoples

It is the _________(right) of indigenous peoples to exist, possess their territories, and right to sovereign ____________________(self-determination).

Genocide and dispossession are wrong as are patterns of violations of native rights according to ____________________ ________ (international law).

The UN and other world organizations must act on this problem: international law is being __________ (ignored) in many countries where indigenous rights are violated, even when indigenous people are the majority because of former colonial relationships.

Most colonies have been freed; however, internal indigenous peoples are still in ________________ (dependent) status.

A treaty relation exists between the US government and the Indian nations. They also frequently still maintain some land bases and some self-government, therefore, they qualify for international law to be applied. The term “nation” is important to international discussions, therefore it is more apt than “tribe”.

HISTORICAL RIGHTS OF INDIGENOUS PEOPLES

European Christians believed they had the right to occupy territory of newly discovered peoples and extend _____________________ __________________(Christian sovereignty) over it as an extension of Roman legal principle.

Early church leaders like Aquinas and Pope Innocent IV defended the right of non-Christians to control their own _______________________ (territories), although they acknowledged the difference between man-made laws and Divine laws, which distinguished between the faithful and infidels.

After Columbus’ first visit, the scope of European authority over the West Atlantic continents was addressed in documents called the _____________________ (Papal Bulls), by Pope Alexander VI. These acknowledged Spain’s right to _______(take) and _____________(Christianize) their newly acquired lands.

John Mair challenged the authority of the Pope and asserted that authority was held by __________________ (heads of state). He agreed that infidels could be overtaken if they refused to convert to Christianity, but if they did convert there was _____________________________________ (no justification) for conquest. He also believed that slavery was ___________ (natural) for some people and that the more civilized should rule the less civilized.

In Spain in 1511, Father Antonio de Montesinos criticized the Spanish for their ____________ (enslavement) and _____________________ (slaughter) of indigenous people in the Western hemisphere.

Two lines of thinking emerged in response to Father Montesino’s charges. Palacios Rubios claimed that The Alexandrine Bulls gave _____________________ (legal right) to Spain to conquer based on the Pope’s authority. Rubios wrote the Requirimiento, which was to be read to ___________ (infidels) telling them they were to convert or be attacked. By converting, they also came under Spanish authority. If they failed to agree, they could be attacked in a “_____ (Just) War”.

DePaz did not believe slavery was a natural state for Indians and was the first European to say so. If native peoples had not been exposed to the __________________ (teachings of the Church), they could legally resist any war against them.

The Spanish legal scholar de Victoria was the first European to uphold the _______________________________ (sovereign power) of indigenous nations to cede their own territories though informed ______________________ (international) treaties.

Pope Paul III in 1537 taught his subjects that Indians were ________ (human). He also said that they were not to be enslaved or deprived of _________ (property) even if they were outside the faith.

In 1540, Charles V of Spain assembled a council to discuss the rights and responsibilities of the Crown after hearing of many _______________ (massacres).

Father Las Casas, who had lived among the Indians between 1502 and 1547, claimed that they were __________ ________ (rightful sovereigns) and could not be legally subjugated by Spain.

Spain then passed laws setting up the new lands in trust for ______________ (indigenous people). However, these new laws, like any others to protect Indians, were _____________ (violated) repeatedly in the Americas.

England transferred their Irish policies to the new colonies in the West. The Protestants would bring the “true” _____ (God) to the Indians, but they also had the right to ________ ____ ______ (trade with them). If they refused, they could be ______________ (conquered).

English law held in 1622 that the legal and political rights of indigenous peoples __________ (ended) when contacted by ________________ (Christians).

THE STATUS OF INDIGENOUS NATIONS IN THE US p. 63

First European settlements were met peacefully, but all subjugated or attacked their indigenous neighbors by ____________________ (immigrants):

St. Augustine, Fl. (Spain) 1565

Jamestown, Va. (England) 1607

New Amsterdam, NY (Holland) 1609

Santa Fe, NM (Spain) 1609

Plymouth, MA (England) 1620

Dutch began to negotiate for land [with the strong Iroquois Confederacy], which set example for Swedes and some English. [NOB - This tradition in mid Atlantic area (NY, PA, NJ) pushed most Indians out, but through trade, deception, and treaty as opposed to war and scalp rewards.]

More likely, the Doctrine of Discovery, which held that a conquered nation must cede its land, was employed. Later Chief Justice John Marshall wrote that this gave the right of purchase to the discoverer, but did not extinguish the right of the aboriginals to sell it.

Prior to the American Revolution, both the colonies and the British had centralized treaty making, moving it to a federal responsibility and pushing the individual colonies out of the picture.

Attorney General Wirt confirmed that “So long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive. We treat with them as separate sovereignties, and while and Indian nation continues to exist within the acknowledged limits, we have no more right to enter upon their territory than we have to enter upon the territory of a foreign prince.” (State,p.65)

When viewed as independent nations, self-governed and self-directed, the US negotiated treaties with the nations it encountered, 370 between 1778-1871. From 1871-1902, these became “agreements”, reflecting some political conflict within the Congress, but not changing the importance of the pact.

These treaties can be regarded as any other nation-to-nation agreement which has international implications. US Courts have never upheld the claim that they are less than other treaties ratified by the US.

However, the US Congress has passed thousand of laws regarding Indians, justifying its actions under the “plenary powers doctrine”. But like all colonizing governments, its actions to subjugate native nations is built on self-serving law and not international statute.

US COLONIZATION OF INDIGENOUS NATIONS

Prior to its third war with England in 1812, the US was not powerful enough to colonize all Indian nations east of the Mississippi. But by 1820, that had changed. Believing that the new Americans were superior and therefore had a god-given right to conquer under the philosophy of Manifest Destiny, the white race was urged to divest the land of the red. Indians were accused of holding back civilization and the potential of the country, and attempts to Christianize them continued to fail.

By 1848, Indian Affairs Commissioner Medill asserted the right to remove Indians to two “colonies”, one in Minnesota and the other in Oklahoma. Mandatory land cessions continued, some with payment. Well into the 20th century, land was seized under this policy, including 1.8 million acres between 1936 and 1976.

Official US policy of self-determination gives an illusion of freedom, but all decisions fall within the colonial framework, similar to all late colonial relationships.

The South African government claimed to hold Namibia in trust, but the international community pressured its colonizer to relent, thus insuring independence.

Economic conditions among Indian nations was allowed to deteriorate to the point that by 1970, Pres. Nixon admitted Indians were the most economically depressed group in the nation.

Although tribal councils were enacted with voting rights, all decisions must be approved by the Bureau of Indian Affairs, thereby curtailing both freedom and efficiency.

The relationship of the tribal autonomy becomes especially meaningful when one realizes the tremendous natural resources found on Indian land. [NOB - the desire of the Navajo to control its own mining of uranium is similar to international conflict between indigenous peoples and logging in the rain forests.]

While the holding native lands and resources in trust for Indians can by breached by the government without penalty, it cannot get away with neglecting its fiduciary responsibility.

Chapter 2 Study Guide Part II

What was the principle of territorium nullius?

First the ___________(Dutch), then the ________ (Swedish) and the ___________ (English) began to negotiate treaties for land cessions. John Marshall, Supreme Court Chief Justice, confirmed that discovery of land could not affect the __________ (rights) of those already in _____________(possession).

Right before the Revolution, both the British and the Americans tried to centralize relations with_______ _________ (Indian nations). The power was moved from individual states to ________ (central or US govt), making treaties nation to ________

(nation/US govt). Attorney General William Wirt wrote that if a “Tribe ________ (exists) and remains in possession of its _________ (lands), title and possession are both ______________ (sovereign) and exclusive.” Tribes are like all other ____________

__________ (indep. Nations) in that their territory is __________ (sovereign). Treaties were and are validated by the US ________________ (Constitution) as the supreme law of the land.

In a one hundred-year period from 1778-1871, the US ratified more than _____ (370) treaties with Indian nations. Treaties should have international meaning because they are bilateral agreements between ________ (equals, nations). US Courts hold that treaties with Indian nations are not inferior to those with _________ (foreign) nations. The Courts add two important dimensions. One requires that they be interpreted as the ___________ ______________ (native signatories/negotiators) would have. Second, treaties are to be interpreted ____________ (bilaterally) with ambiguities resolved in favor of ___________ _______ (Indian interpretations). Also, these treaties cannot be negated unless expressly stated by __________ (Congress). The right of Congress to diminish the sovereignty of Indian nations thousands of years old seems to derive from colonial relationships. The issue of indigenous people and colonial powers in international law is handled by the _____ (UN).

US Colonization of Indigenous Nations

Between 1812 and 1820, the US became powerful enough to _______ (invade) indigenous nations. Under the racist philosophy of _________ ____________ (Manifest Destiny), Americans believed that had a ________ (right) and _____________ (obligation) to seize and occupy all of N. America.

“An idle and thriftless race cannot be permitted to stand _______ (guard) at the treasure vaults of ____ (our) silver and gold…the prospector and miner may ________ (enter) and by enriching himself __________ (enrich) the nation and bless the world by the result of his toil.”

Pres. John Adams wrote, “ it is the principle of _______ (religion) which inspires the Indian with such invincible ________

(aversion) both to Civilization and Christianity.

Between 1936 and 1976, over 1.8 million acres of land were removed from control of __________ (Ind or indig nations) by the federal government.

Political Colonization (p.68)

The appearance of self-determination is viewed as nothing more than ___________ (colonial) self-administration. Congress has periodically dictated the manner of choosing ________ ________ (tribal officials) or other aspects of tribal __________ (govt). This attitude of administration resembles any from the late ____________ (colonial) period. Most nations refuse to recognize the right of the colonies to independence or ___________________ (self-determination), thereby insisting these affairs are domestic and not subject to ___________ (international) law.

Economic Colonization (p.70)

In 1970, Pres. Nixon admitted that Indians were the _____ (most) economically depressed group in the US, a condition still true today. The economic condition of Indian nations can be directly attributed to the political and military policies of the ________ ________ (federal government), overseen by the Bureau of Indian Affairs (BIA), and the Secretary of the Interior. Although there have been some changes, the ______ ________ (federal govt0 still controls the vast natural resources found on Indian lands.

A ________ (trust) relation exists between the US govt and recognized Indian nations which has fiduciary implications. The difference between these and Pacific Trust Territory is that the island peoples have the absolute _______ (right) to exercise self-determination when they ________ (choose). It is today the only surviving international trust relationship remaining of the eleven formed in 1950!

The United Nations

The end of World War II brought the ______ (end) of colonialism, mainly through __________ (ed) and exposure to democratic ideas. This led to ______________ (aspirations) of political independence. In the United Nations charter, the right to __________ __________ (self-determination) is a founding principle. American Indian nations have land, are politically dominated but are not separated from their colonizer. This has created a continuing set of arguments from indigenous nations as to whether or not they _______ (qualify) for recognition under the UN resolutions.

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