The A to Z of Native American Movements (The A to Z Guide Series)

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Collinge, Hinduism, Bruce M. Sullivan, North American Environmentalism, Edward R.

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Wells and Alan M. Schwartz, Welfare State, Bent Greve, Socialism, James C. Adamson and Philip Hainsworth, Taoism, Julian F. Pas in cooperation with Man Kam Leung, Judaism, Norman Solomon, Green Movement, Elim Papadakis, Nietzscheanism, Carol Diethe, Gay Liberation Movement, Ronald J. Hunt, Moussalli, Guder, and Donald K. McKim, Baptists, William H.

Brackney, Cooperative Movement, Jack Shaffer, Reformation and Counter-Reformation, Hans J. Hillerbrand, Shakers, Holley Gene Duffield, Bass Jr. Zionism, Rafael Medoff and Chaim I. Waxman, Mormonism, 2nd ed. Hegelian Philosophy, John W. Burbidge, Larson and Mark W. Oldenburg, Holiness Movement, William Kostlevy, Islam, Ludwig W. Adamec , Shinto, Stuart D. Picken, Olympic Movement, 2nd ed.

Anthologies

Slavery and Abolition, Martin A. Klein, Terrorism, 2nd ed. New Religious Movements, George D. Chryssides, Prophets in Islam and Judaism, Scott B. Noegel and Brannon M. Wheeler, Jesseph, Tad M. Schmaltz, and Theo Verbeek, Witchcraft, Michael D. Bailey, Unitarian Universalism, Mark W. Harris, New Age Movements, Michael York, Organized Labor, 2nd ed.

Utopianism, James M. Morris and Andrea L. Kross, Feminism, 2nd ed. Jainism, Kristi L. Wiley, Cartwright, Seventh-Day Adventists, Gary Land, Methodism, 2nd ed. Sufism, John Renard , McLeod, Olympic Movement, 3rd ed. Anglicanism, Colin Buchanan, Welfare State, 2nd ed. Another year, now more than since the Pope divided the world between Spain and Portugal, laying down the doctrine of discovery and conquest:. An earlier Papal Bull had declared the legitimacy of Christian domination over "pagans," sanctifying enslavement and expropriation of property:.

We might look at these ancient documents with amusement or condescension, confident in the modern view that church and state are separate. This would be a mistake. These Papal Bulls are part of the fabric of United States and international law. The fact that Papal authority is the basis for United States power over indigenous peoples is not generally understood, even by lawyers who work with federal Indian law. This is due in large part to the sophistry of John Marshall, one of the greatest figures in the pantheon of the U. Supreme Court. Marshall borrowed from Papal Bulls the essential legalisms needed for state power over indigenous peoples.

He encased Christian religious premises within the rhetoric of "European" expansion:. Johnson v. McIntosh has never been overruled. But it is concealed, as most foundations are, because Johnson v.


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McIntosh acts as a Laundromat for religious concepts. After Marshall's opinion, no lawyer or court would need to acknowledge that land title claims in United states law are based on a doctrine of Christian supremacy. From that time on, in law and history books, "European" would be substituted for "Christian," so that schoolchild and lawyer alike could speak of the "age of discovery" as the age of "European expansion.

Marshall knew what he was doing. After writing that "Christian princes" could take lands "unknown to all Christian peoples," he admitted that the doctrine was an "extravagant The "discovery doctrine" was not self-effectuating. It required force. As Marshall wrote, "These claims have been maintained and established It was called the "requirement" because royal law required it to be read before hostilities could be undertaken against a native people.

It is fashionable, especially around Columbus Day, to speak about the "encounter" of the "old" and "new" worlds, as a way of trying to forget exactly how bloody this event was. But, as Michael Shapiro wrote, "National societies that Over million people on earth today can be said to be truly "indigenous" -- living on lands which they have inhabited since time immemorial.

In every instance, indigenous communities are legally circumscribed by one or more nation-states, within territorial boundaries drawn by government geography.

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These million constitute an increasingly self-aware force for global rethinking of the nature of power. Their challenge is increasingly overt and serious to the world's political structure. The nature of the challenge becomes more clear when we consider the revision of the original designation, which referred to indigenous peoples.

The plural form -- "peoples" -- triggered immense anxiety and successful resistance by member states of the UN, on the grounds that these million people are individual citizens of states claiming jurisdiction over them, and not members of independent peoples. The U. S, claim that it deals with indigenous peoples on a "government-to-government" basis. Here is one example of "now you see it, now you don't. In light of the history of treaty-making and with an eye toward restoring the sense of equality between nations that justified the treaty process to begin with, American Indians are -- in concert with indigenous peoples worldwide -- asserting a sense of their own "sovereignty.

The Declaration is the product of twenty years of negotiating among indigenous peoples and U. It's very title draws the line of battle -- rights of indigenous peoples plural. When we enter into the realm of "federal Indian law," we need to keep in mind that we are traveling in a semantic world created by one group to rule another.

The terminology of law is a powerful naming process. In working with this law, we will use the names that it uses, but we will always want to keep in mind that the reality behind the names is what we are struggling over. According to the theory of sovereignty in federal Indian law, "tribal" peoples have a lesser form of "sovereignty," which is not really sovereignty at all, but dependence.

Georgia , American Indian societies, though they are "nations" in the general sense of the word, are not fully sovereign, but are "domestic, dependent nations. The foundation of federal Indian law is the assertion by the United States of a special kind of non-sovereign sovereignty. In , the federal district court for the district of Montana stated the underlying principle in the case of United States v.

Blackfeet Tribe , F. The facts were simple: The Blackfeet Business Council passed a resolution authorizing gambling on the reservation and the licensing of slot machines. An FBI agent seized four machines. The Blackfeet Tribal Court issued an order restraining all persons from removing the seized articles from the reservation. A tribal judge then ordered the U. Attorney to show cause why he should not be cited for contempt of the tribal court. Attorney applied to federal court for an injunction to block the contempt citations.

The Blackfeet Tribe argued that it is sovereign and that the jurisdiction of the tribal court flows directly from this sovereignty. The federal court said:. The fundamental premise of "American Indian sovereignty" as defined in federal Indian law is that it is not sovereignty. Federal power truncates "tribal sovereignty" in myriad ways too numerous to list here. Federal Indian law is perhaps the most complex area of United States law including tax laws. In civil and criminal law both, the range and scope of "tribal sovereignty" is fragmented into overlapping and contradictory rules premised on one foundation: the "plenary power" of the United States.

That such "plenary power" is nowhere stated in the U. Constitution is no more than a small nuisance to the judges who have declared its existence. Administrative agencies and Congress alike grasp firmly to their judicially-created prerogatives of total power over their "wards," in whose "trust" they act as they see fit. Federal Indian law is the continuation of colonialism.

On the basis of a non-sovereign "tribal sovereignty," the United States has built an entire apparatus for dispossessing indigenous peoples of their lands, their social organizations, and their original powers of self-determination. The concept of "American Indian sovereignty" is useful to the United States because it denies indigenous power in the name of indigenous sovereignty. The Court denied the Cherokee suit on the ground that an Indian nation is not a "foreign nation" entitled to sue a state in the Supreme Court.

That decision has never been overruled and is cited frequently today. In June of this year, , the Supreme Court decided that the Cour d'Alene Tribe could litigate its land claims against the state of Idaho only in Idaho's courts. The Cour d'Alene were claiming "aboriginal title," a subsidiary title subject to the "trusteeship" of the United States.

They were trying to work within the limited concept of "American Indian sovereignty. Native Village of Noatak , US ]. Cour d'Alene Tribe , No. The Cherokee were barred from suing in the Supreme Court because an Indian nation is not a foreign nation. The Cour d'Alene were barred from suing in district court because an Indian nation is a foreign nation.

You figure it out: "now you see it, now you don't. Like every other colonial power, the United States early on found it did not have sufficient resources to maintain martial rule over territories it wanted to control. It resorted to "indirect rule" by puppet governments through the mechanism of appointed and bribed "chiefs. By the 20th century, the condition of their survival was an embarrassment to the government.

In , the United States set out to "reorganize" indigenous peoples into elected corporate political structures -- a formalized system of "tribal councils. If we are honest about the legal history of the Indian Reorganization Act IRA , we have to say that the "tribal council" system was intended as a more elaborate puppet government. The system was not the result of the treaty process, but rather the distortion of treaties in the direction that the United States wanted to interpret and apply them. The IRA was passed in part to stabilize the land base and social conditions of American Indians, which had been devastated by the General Allotment Act.

The fact that some of the worst abuses of indigenous peoples were stopped by the IRA was some excuse for the act.

But the act was also passed -- as its title states -- to "reorganize" the Indians, overthrowing traditional organizations and promoting a "democratic" tribal council system structured as a corporate business. The fact that some tribal councils still raise sovereignty issues is evidence of the resilience and continued existence of indigenous peoples. The treaty acknowledged Western Shoshone control over their homelands and provided for easements across their land and some mining and related activities.

Today, massive strip-mines ravage Western Shoshone lands and pollute and destroy the waters.

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The United States adds to this destruction by disposing radioactive waste in Yucca Mountain. Although Western Shoshone land title has never been proven to have been ceded or lost, the Supreme Court has ruled that they are precluded from litigating their title. Western Shoshone people who oppose the destruction of their lands as violations of their title are depicted as outlaws. How did this come about? Was it through a denial of Western Shoshone sovereignty? No, it was through the affirmation of their "sovereignty" -- that is, through the affirmation of the kind of sovereignty that the Western Shoshone have under "federal Indian law.

This sovereignty is the non-sovereignty of "councils" created by the United States government in the name of the Western Shoshone people under the Indian Reorganization Act. In accordance with IRA principles, the federal government "recognized" various Western Shoshone "tribal councils" as the agents of Western Shoshone "sovereignty.

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This Act was intended to wipe out all Indian title for non-reservation lands by providing money compensation for such lands. The Act did not require that a claim represent all or even a majority of the Indians in whose name it was filed. As a result of the Temoak claim -- which the traditional, "non-recognized" Western Shoshone opposed and the Temoak council subsequently tried to withdraw -- the Commission told the Western Shoshone that their lands had been "taken" and that they would receive compensation.

The Western Shoshone refused to take the compensation and one family the Danns went to court to defend title against the United States.

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The Ninth Circuit Court of Appeals ruled that Western Shoshone title had never actually been litigated, that none of the claims made against it were sufficient to take it away, and that since the Western Shoshone had refused the Claims Commission compensation they still held title. The United States Supreme Court reversed the Ninth Circuit, stating that the Western Shoshone could not argue about their title because the compensation had been accepted The Western Shoshone case is not atypical. Similar events have unfolded for many other indigenous peoples under United States law.

The point is that "American Indian sovereignty" in federal Indian law is a tool for limiting the powers of indigenous self-determination and for allowing the United States to determine the structure of indigenous government.

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We need to remember always that "sovereignty" in federal Indian law operates in conjunction with so-called "trust" and "wardship" doctrines -- two other concepts proclaimed unilaterally by the United States to assert power over indigenous peoples. First, the struggle over Indian "sovereignty" -- whatever it is -- is far from over and is indeed a hot topic. Second, even the Congressional defenders of this sovereignty say that the United States could eliminate it if it wishes. Third, the notion that federal funding is rooted in treaty obligations, not in discretionary programs, is almost wholly forgotten.

Fourth, the attack on Indian sovereignty can be packaged in a rhetoric of "helping the poor Indians. By the nineteenth century,.


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Sovereignty became "the dominant concept in the field of Now, as the 20th century ends, "It is fashionable to argue that sovereignty is changing and that states are losing their validity and meaning. The result was and is extreme social dysfunction, as new states and their patrons tried to coerce peoples and fragments of peoples into sovereign allegiance.

Other events and ideas are eclipsing the notion of sovereignty.



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