Summarizing "American Indians in Historical Perspective"

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Your task is to compose a 400-600 word summary of Vine Deloria, Jr. and Clifford Lytle’s essay, “American Indians in Historical Perspective” that focuses on the way the text is written . This assignment will challenge you to reduce a fairly dense essay to its essentials while also considering what message the authors are trying to communicate and how they communicate it. To think about the way that this particular essay is written, you might find some of these questions helpful as you structure your summary:

  • What is the authors’ central message? Is there an explicit statement of that message?
  • How do the writers support what they say: by citing facts or statistics? by quoting experts? by noting personal experiences? Are you persuaded?
  • Are there any words, phrases, or sentences that you find notable and that contribute to the text’s overall effect?
  • How does the text’s design affect your response to it?

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Atnerican Indians, Atnerican Justice Vine Deloria, Jr., and Clifford M. Lytle y University of Texas Press, Austin TO ROBERT BLAKE, who almost looked the part Copyright© 1983 by the University of Texas Press All rights reserved Printed in the United States of America FirstEdition1 1983 Requests for permission to reproduce material from this work should be sent to Permissions, University of Texas Press1 Box 7819 1 Austin, Texas 78712. LIBRARY OF CONGRESS CATALOGING IN PUBLICATION DATA Deloria1 Vine. American Indians1 American Justice. Bibliography: p. Includes indexes. I. Indians of North America-Courts. 2. Indians of North America-Legal status, laws, etc. 3. CourtsUnited States. I. Lytle, Clifford M. IL Title. KF8224.c6D44 1983 347.73'1'08997 ISBN 0-292-73833-r 347.307ro8997 ISBN 0-292-73834-X (pbk.) 83-6975 r. American Indians in Historical Perspective American Indians are a unique branch of the human family possessing a wide variety of cultural expressions, origins, and traditions. The very diversity of Indian tribes has dampened efforts to treat Indians as a monolithic group although historians have often struggled to bring meaning and understanding to what the nonIndian community views as "the Indians." Almost all generalizations that have been constructed to explain the nature of Indian life have dissolved when the particularities of tribal existence have been noted. Complicating an analysis of Indian history is the fact that it has been written largely from the non-Indian point of view by advocates of that position. The perspective of the non-Indian, generally colored by the uncritical acceptance of cultural evolution as the definitive experience of our species, has rarely coincided with the view from the reservation. Some Indian advocates would argue against cultural evolution, feeling that it is not an accurate characterization of events that their traditions inform them have been most important in shaping their perception of the world. It is impossible to understand American Indians in their contemporary setting without first gaining some knowledge of their history as it has been formed and shaped by the Indian experience with Western civilization. Many of the customs and traditions of the past persist in the minds and lives of Indians today and have been jealously preserved over several centuries of contact with non· Indians as the last remaining values that distinguish Indians from the people around them. This is particularly true in the case of Indian notions of law and justice. Indian judicial systems call upon a special blending of the past and the present in order to solve intratribal disputes. This blending has not been an easy task. Indians must continually choose to follow the dictates of their traditions or to accept the values of the outsider. History, therefore, cannot be divorced from an analysis of American Indian life. But it must be 2 American Indians in Historical Perspective tempered with a knowledge of the Indian perspective, which provides it with the substance for understanding the cultural conflict it represents. The following historical examination will be divided into separate periods of federal Indian policy; each phase of which may be characterized by the impact of some kind of federal initiative in resolving the continuing problem of dealing with American Indians. With this tentative outline of policy development in hand, we will be better able to understand the development and operation of the contemporary Indian legal system. We will be able to see its historical roots and note the expedient compromises that both Indians and non-Indians made and must continue to make in order to ensure that the institutions that affect people today continue to grow and to serve people. Division of Indian history into six separate periods, then, is a convenient way of giving us sufficient data for reflection and orientation so that we can transcend mere information and come to our own conclusions about the future of Indian societies as exemplified in their contemporary institutions. DISCOVERY, CONQUEST, AND TREATY-MAKING (1532-1828) When the European settlers arrived in America, long before the establishment of the United States government, they were faced with a formidable problem. How were the newly arrived immigrants to deal with the native inhabitants of the land-the American Indians? The laws of discovery and conquest had been applied in different fashions throughout human history. Those who discovered and conquered other lands were entitled to them, their riches, and their spoils. The conquered people could be treated as slaves, banished to other lands, or assimilated into the society and institutions of the conquering people. Indeed, human history had been the story of conquest, assimilation or extinction, and yet more con~ quest. But the discovery of America was different. New continents had not been conquered before and the richness of the prize inspired the maritime powers of Europe to gain whatever advantages they might in the new hemisphere. Felix Cohen traced the historical antecedents of Indian legal history back to r 532, when the popularly supported solution to the European dilemma on Indian relations was conceived. At that time the emperor of Spain, a devout Catholic monarch, in order to ensure American Indians in Historical Perspective 3 that hi.s country followed the dictates of the religion it strongly professed, sought the advice of Francisco de Vitoria, a prominent theologian, as to the rights the Spanish should claim in the new world (Cohen, p. 46). Vitoria reached the conclusion that the natives were the true owners of the land. Since the Indians owned the land, the Spanish could not claim title through discovery, for title by discovery could only be justified where property is ownerless (Vitoria, p. 139). Furthermore, in the absence of a just war, which was defined with theological precision and could not be undertaken at a whim, only the voluntary consent of the aborigines could justify the taking of Indian land. "So long as the Indians respected the natural rights of the Spaniards, recognized by the law of nations, to travel in their lands and to sojourn, trade, and defend their rights therein, the Spaniards could not wage a just war against the Indians and therefore could not claim any rights by conquest" (as summarized by Cohen, pp. 46-47). On this basis, the Europeans decided to adopt much, but certainly not all, of Vitoria's philosophy. The Indian tribes, at least in North America, were recognized as legitimate entities capable of dealing with the European nations by treaty. Since the first settlements were very small, mere outposts in a hostile land, and rarely contained more than a few hundred inhabitants, treaty-making was a feasible method of gaining a foothold on the continent without alarming the natives. Most early settlements in fact needed the protection of larger Indian tribes in order to survive threats made by smaller groups whose lands they invaded. Treating with the Indians, then, brought an air of civility and legitimacy to the white settlers' relations with the Indians and provoked no immediate retaliation by the tribes. Instead of the Indians being subjected to bondage or their lands merely seized through the use of force, which Spain eventually did, civility reigned in North America. Indian land and the rights to live in certain areas were purchased at formal treaty sessions. The impact of Vitoria's view on European-Indian relations for the next two hundred years was very important because it encouraged respect for the tribes as societies of people. Treaty-making became the basis for defining both the legal and political relationships between the Indians and the European colonists. And when the young colonies finally became the United States, the treaty-making powers that earlier had been exercised by the European nations were assumed by the Americans with their independence. In r 77 8 the United States government entered into its first treaty with the Indians-the Delaware tribe. In the course of the next century over six 4 American Indians in Historical Perspective hundred treaties and agreements were made with the tribes and nations of North America. Not only were these treaties designed, as was the first treaty, to ensure peaceful relations with the Indians but, even more important, they were also a means of securing an orderly transfer of landownership from the tribes to the United States. In 1823 in the case of [ohnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), Chief Justice John Marshall both adopted and amended Vitoria's theory for the domestic law of the United States. He suggested that discovery did indeed give title to the land and that this title was recognized by the other European countries. It was a title that gave exclusive right to extinguish the Indians' title, which became, as a matter of course, something of an equitable title or occupancy. Thus Indian rights, according to Marshall, were not extinguished but merely "impaired" by European assertions. Since the Indians were unaware of the complexity of Marshall's revision and since there was no international forum in which such a claim could be challenged had the Indians known and objected, Marshall's definition in effect traded a vested property right for a recognized political right of quasi sovereignty for the tribes. This judicial acknowledgment of Indians as recognized political bodies is also affirmed in the Cherokee Nation Cases Ito be discussed at length in the next chapter). Marshall was again confronted with the necessity of making new law where none had previously existed. He characterized Indian nations as "domestic dependent nations" [Cherokee Nation v. Georgia, 30 U.S. [5 Pet.) 1 [1831)). Though subject to the guardianship protection and superior political power of the federal government, Indian nations did possess some degree of sovereignty. Thus, while the tribes did not fall within the category of "foreign nations" that possessed full sovereignty, they did constitute legitimate legal and political entities that could manage their own affairs, govern themselves internally, and engage in legal and political relations with the federal government and its subdivisions. This notion was extended even further in the second of the Cherokee Nation Cases, Worcester v. Georgia, 31 U.S. [6 Pet.) 515 [1832). Marshall, building on this foundation of domestic dependency, interposed a limited sovereignty enjoyed by the Indian nations to prevent the state of Georgia from extending its power over the Cherokee Nation's lands. Andrew Jackson's refusal to enforce Marshall's decision gave him mute testimony that, if the tribes had legal rights affirmed by the highest court in the land, their political status made it easy to void such rights. Much of the legal history relating to the problems of Indian tribes was shaped by the events that occurred during this first period American Indians in Historical Perspective 5 of discovery, conquest, and treaty-making. Indian nations negotiated at least partially from a position of strength. As the white settlements moved west it became increasingly difficult to supervise, administer, and protect the Indian tribes that stood in their way, and frequent conflicts arose. The United States quickly learned in the Seminole wars of the 1830s that fighting Indians was a very expensive task, and many treaties were made as an alternative to a prolonged war, which the Indians were certain to lose but which would prove extremely costly and politically unsettling. The treaty-making era came to an end when Congress, through a rider to an appropriation bill in 1871, declared that no Indian nation would henceforth be recognized for the purposes of making treaties. This action was a bit premature since various commissions continued making treaties with the tribes until 1914, when the Ute Mountain Utes signed the last major agreement with the United States. But these treaties, because of the prohibition by Congress, had to be called "agreements" when being presented for ratification. Although "treaty" seems to imply an equal bargaining position, the Indians were often at a clear disadvantage when negotiating such arrangements. The actual document was always written in English and was generally interpreted by people who had a stal
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American Indians Perspective
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No one can understand American Indians without digging deep into their history because
their cultural beliefs and ways of living have been greatly shaped by western civilization.
Nonetheless, Indians have remained conservative over the centuries, there are beliefs and
customs that distinguish them from all other races, this is derived from their perspective on law
and justices, their judicial systems have blended the past and the present laws to make
judgments. When Europeans set foot in America, they were confused on how to conquer the land
...


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Just what I was looking for! Super helpful.

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