This week I finalized my project idea and completed a rough outline of my research paper. I will be researching and comparing indigenous sovereignty in the United States, New Zealand, Apartheid South Africa, and Israel/Palestine. My paper will have a special focus on the role of the judiciary in indigenous sovereignty.
These Chapters explored the history of the Supreme Court in the second half of the nineteenth century. Much of the court’s work during this period had to do with issues surrounding the American Civil War, as well as business issues during the Gilded Age. I think this era further established that courts—including the Supreme Court—are never immune to politics or personal bias, and often make decisions in accordance with unsavory values rather than the will of the Constitution. I feel that this explains the court’s willingness to apply the protections of the Fourteenth Amendment to corporations, while denying them to black Americans; the judges who made these decisions were products of their racist society, and often had ties to industry. This has lasting consequences: one of the decisions made during this period was in the 1886 case of Santa Clara County v. Southern Pacific Railroad, which established the concept of corporate personhood, and provided precedent for the 2010 Citizens United ruling.
Nitpicking time: Once again, I found a minor passage in which Irons mischaracterizes history. On page 183, he refers to the Battle of Antietam as a “disastrous defeat” for the Union. While the battle was extremely costly—the bloodiest day in American history, in fact—it is wrong to view it as a defeat for the Union. The battle was one of two occasions on which Robert E. Lee marched Confederate troops into Union territory, and on both occasions, he was forced to retreat. Lincoln viewed it as a political victory, and used the battle as an opportunity to issue his Emancipation Proclamation. Lincoln demoted McClellan because of his failure to capitalize on Lee’s retreat, not because the battle itself was lost. This is insignificant with regard to the main issues discussed in the text, but I find it annoying that Irons misconstrues information like this.
This chapter discussed tools for finding and understanding made law. It described a variety of online and in person resources for researching constitutions, statutes, and regulations. What I found most interesting about this chapter was its discussion of how one should interpret certain types of law differently than others, e.g. read criminal law strictly. Moreover, I find it interesting that laws written with such complicated language—ostensibly to make them immune to misinterpretation—can still be understood in several different ways.
These chapters discussed several disastrous court decisions from the nineteenth and twentieth centuries and how they contributed to the subjugation of Indian communities. Echo-Hawk first discusses the various Indian wars that took place throughout the 1800s, and points out that despite many decades of bloodshed, it was not military defeat that robbed American Indians of their land and culture; it was a combination of dishonest transactions and inconsistent legal reasoning.
What these chapters made clear to me was that the legislation, court decisions, and military force worked in tandem to fulfill manifest destiny at the expense of Indians. The Supreme Court’s ruling in Lone Wolf v. Hitchcock gave full control of Indian’s lives and land to Congress; Congress in turn relied on courts to uphold its legislation, and could count on American military power to enforce it. While the Supreme Court did legitimize the use of force by recognizing the law of conquest, the perpetrators of violence against Indians did not wait for judicial authorization to commit atrocities, as they felt secure in their ability to do so without legal consequence. At the end of the day, complicated questions of legality meant little to those who had the necessary hard power to ignore the law. This is certainly true in modern times as well; Echo-Hawk points out that the 2003 invasion of Iraq was illegal under international law, but that the United States’ military preeminence allowed its forces to proceed with impunity.
Nitpicking time: I noticed a minor inaccuracy in chapter eight. While discussing the Code of Indian Offenses, Echo-Hawk identifies Edward Teller as the Interior Secretary responsible for it. That secretary’s name was actually Henry M. Teller; Edward Teller was an Hungarian-born scientist who worked on the Manhattan Project, and eventually came to be known as “the father of the hydrogen bomb.” I had previously skimmed the latter Teller’s book, The Legacy of Hiroshima, and recognized his name when I came across it in this week’s text. I thought it an odd coincidence that he shared his name with an Interior Secretary, and upon researching the matter, discovered Echo-Hawk’s error.
These chapters discussed the evolution of the Supreme Court in the late eighteenth and early nineteenth centuries, with a focus on John Marshall’s tenure as Chief Justice. What struck me most about this era is not that certain decisions proved incredibly consequential—this would be expected a legal system that relies on early precedents—but that those decisions were often about seemingly inconsequential issues. Marbury v. Madison is the best example of this. Thanks John Marshall’s decision, a dispute over a judicial appointment came to serve as the basis for judiciary preeminence in the United States.
One entirely insignificant excerpt that caught my attention was Irons’ explanation of political parties in the mid-nineteenth century. On page 120 he writes, “The Federalists changed their name to the Whig Party between 1836 and 1856, when they became the second Republican Party.” This severely mischaracterizes the decline of the Whig Party. Although the Whigs fell apart in 1856, this was due to their failure to nominate a presidential candidate, not because it reformed itself as the Republican Party. The Republican Party was established in 1854 by a coalition that included former Whigs, but was not itself a seamless continuation of the Whig Party. Irons only mentioned this to clear up confusion about party identities, but in doing so he misrepresented the information and created further confusion.
These chapters provided useful information on researching legal matters. Chapter three focused on helping one identify what type of law they need to research, and which sources might be most helpful for specific topics. Chapter four identified different types of secondary sources for legal information, and gave tips on how to use them.
Key terms from the chapters
Criminal Law: Cases prosecuted by the government to render a conviction for illegal behavior.
Civil Law: Cases in which one party pursues legal action against another to settle a non-criminal dispute.
Substantive Law: The legal basis for a case; laws that a judge will interpret in order to render a verdict.
Procedural Law: Rules about how a case is pursued by police, prosecutors, juries, etc.
Chapters four and five covered the incredibly destructive decisions delivered in Johnson v. M’intosh and Cherokee Nation v. Georgia. The former declared that the United States government had exclusive control over transactions involving Indian land, thereby putting Indian land rights at their mercy. In Cherokee Nation, Justice John Marshall ruled that Indian tribes were “domestic dependent nations,” and could not sue the state of Georgia for violating their sovereignty. This ruling would deny Indians access to the U.S. legal system for decades. Together, Johnson and Cherokee Nation laid the foundation for decades of unchecked aggression toward Indian tribes; the former robbed them of control over their land, and the latter left them with no legal recourse to fight this injustice.
These chapters revealed the extent of the American government’s hypocrisy in its treatment of Indigenous peoples. While Indians had previously been treated as responsible parties for the purposes of selling land and making treaties, the Supreme Court declared them racially and culturally inferior, and therefore unworthy of full legal rights. This decision was made in spite of incredible evidence otherwise. In many ways, the Cherokee Nation had acquiesced to European notions of civilization: they developed a written language, a constitutional government, and even began publishing a newspaper. If Westerners had truly wanted to “civilize” Indians, it seems they would have touted the Cherokees as a model for other tribes. The cases explored in chapters four and five show their true motive: the desire to “civilize” Indians was a way of justifying land seizure, not an genuine ideological concern.