Native Americans, Legalities, And Marshall Laws Essay

Type of paper: Essay

Topic: America, United States, Law, Politics, Criminal Justice, Government, Crime, Court

Pages: 3

Words: 825

Published: 2021/01/03

Native Americans in U.S. History
“From the theft of Native American and Mexican lands in the nineteenth centuryfrom the Trail of Tears to Japanese internment, from the creation of ghettos, barrios, reservations and Chinatowns; to the disproportionate placement of toxic hazards in minority neighborhoods—the racial projects of American society have always been spatial projects as well”—George Lipsitz, 52.


Economic exploitation and dispossession, cultural and physical genocide, coerced mass migration from their sacred, ancestral and nutrient-rich lands to arid climates, stripping indigenous tribes of their state-sanctioned tribal sovereignty, and environmentally racist policies all represent the various mechanisms and institutional structuring that undergirded a systematic genocide waged by European colonists against the subaltern Native America. Westerners justified such violence exacted against the natives vis-à-vis the ideological construction of them as a social and culturally constructed as an “abject Other” in relation to the hegemonic White, Anglo-Saxon Protestants, or WASPS (Poupart 87). As a burgeoning world power, the United States enforced cultural constructions of racial Otherness on indigenous peoples to make sure that Native Americans bought into and embraced the possessive investment in whiteness as a guiding and rudimentary ideology of the social, economic, and cultural systems in the U.S. The lived experiences of the majority of the indigenous tribes living in the U.S.—dispossessed and stripped of both their land and culture by hegemonic European overlords—reveal how structural and institutional racism undergirded ideologically-driven, colonial practices that forcibly uprooted Native Americans from their homeland and then forced them to settle in and live on borderlands, and specified reservations located at the fringes. The United States could only become a country if the Native Americans—whom have lived on the land for centuries—disappear through extermination measures in terms of culture, or genocide, which Austin Allen's poems poignantly sums up: "In the Great American Indian novel, when it is finally written, all of the white people will be Indians and all of the Indians will be ghosts" (Allen). The concept of Manifest Destiny formed an integral part of this so-called “myth of the vanishing Indian,” which became inscribed in law during the early nineteenth century.
Signed into law by President Andrew Jackson, a contemptuous man towards the sovereignty of Native American sovereignty and a staunch advocate of glorifying the white man and the possessive investment in whiteness, on May 28, 1830, the Indian Removal Act was passed and granted the president the authority to allocate unsettled lands in the regions west of the Mississippi in exchange for Native American lands contained within those borders. Although some indigenous tribes migrated off their own volition, the majority of the tribes resisted such an arbitrary relocation policy. As a result, Jackson forcefully removed the Cherokees living in Georgia and sent them on foot towards western lands. Dubbed the "Trail of Tears," 4,000 Cherokees perished during this forced migration (Foner 572-573). Historically, Native Americans have failed to combat and resist the hegemonic domination of the newfound colonial rule due to their dearth of economic resources and lack of political clout and agency to effectively challenge a system imbued with trenchant institutional racism. Hegemonic practices deployed against indigenous tribes perpetuated in a hyperbolic manner the “myth of the vanishing Indian”—or the mythical and truer than true idea that the “Indian” was vanishing from the American landscape—in public discourses from the nineteenth century into the present day. This myth purported that European colonists arrived to the New World in order to “fill” or replace both the physical and cultural voids the “vanishing Indian race” abandoned and left behind. Thus, they were entitled to expand, occupy, and thrive in the “vacated” land in the so-called wilderness (Beck).
The government benefited from the Indian Removal Act during the 1830s, as it had previously exploited powerful Native American tribes east of the Mississippi River at the outset of the nineteenth century through negotiation or coercion backed by force. As a result of their relocation, Native Americans not only suffered horrific deaths but also fell victim to arguably the worst environmentally hazardous living conditions in America, as they were relocated to lands devoid of fertile resources and thus became economically depended on hegemonic groups to provide them with resources to subsist (Washburn 171). However, many problems undergirded the removal process that transcended far beyond the latent white greed inhered in the doctrine of Manifest Destiny, or the central and overriding rhetoric ideology for westward expansion between the 1830s and 1898. This ideology was predicated on the notion that it was the colonists' divine right to occupy the lands spanning from the Atlantic seaboards to the Pacific Ocean (165). Such an ideology requires that the land be devoid of any peoples or civilizations, rendering the colonial project both a racial and spatial project.

Problems arose within constitutional and legal contexts because Native American tribes had been categorized and codified as sovereign, autonomous nations that must be recognized by the U.S. government. However, the political agency and power purportedly retained due to the fact that tribes constitutes their own autonomous and sovereign polities separate , their self-determination and self-rule in the United States continued to wane. Embedded within diplomatic and legal mechanisms, the rights of Native American tribes as sovereign and autonomous nations whose land claims and rights were inviolable could not be disputed within legal contexts and precedents. However, President Andrew Jackson rendered the legal position of Native Americans invalid against state claims to their land. The small population of Native Americans made it possible and legal for them to forcibly concede to U.S. government demands or be demolished through brute force (Washburn 166).
The U.S. government waged violence upon native populations despite the sovereignty tribal nations purportedly possessed when the U.S. government was first established. In the court case called Worcester v. Georgia, the United States Supreme Court ruled that the Cherokee natives were considered a nation that retained distinct powers from American institutions and structures. This court ruling served as the foundation of tribal sovereignty during the twentieth century, although it was hardly enforced, which is evident in their forcible removal only a short time after the case ruling. In 1831, Chief Justice John Marshall of the US Supreme Court categorized indigenous nations as “domestic-dependent” nations, which in theory institutionalized native nations as sovereign and equally powerful living within U.S. borders (Chang 175). Despite the fact that tribal entities were perceived of in the eyes of the U.S. Supreme Court as autonomous and sovereign nations, the Justice Marshall used a certain lexicon and discursively framed indigenous tribes as “domestic-dependent nations” in a covert fashion, which further codified the subjugation of indigenous nations and subsumed them under the auspices of the hegemonic Europeans. The political entity of the domestic-dependent nation was imbued with paternalistic notions in which Native American tribes depended on the compassion and kindness of the white America—especially on the empathy exhibited by the criminal justice system—for the utmost legal protection as stated in Justice Marshall’s decree. Thus, this decree overtly marginalized Native Americans and rendered them abject and racialized Other unable t o protect themselves or thrive without the help of a stronger and more advanced government. This legal reasoning was imbued with a certain racial logic and caricature of indigenous peoples as both infantilized and in a perpetual state of pupilage that required the U.S. government to guide them by becoming pedagogues for how the Native American tribes could effectively become active members in and belong to industrializing, modern world. Such U.S. legal policies reflect overt racial differentiation and have discursively framed Native Americans as both unfit for self-government—which implies that they did not meet the requirements for citizenship according to republican ideology—and in need of domination, which further exposes the link between racialism and colonialism in the modern era. Native American nations living in the United States during the nineteenth century were subject to a covert form of internal colonialism by the U.S. government through their status as domestic-dependent nations also reveals. The ideology of white hegemony left Native Americans devoid of their rightful sovereignty.
The national debate over the legal questions of the Indian Removal Act incited an engaging dialogue in public discourses regarding the legality of the Indian Removal Act. The case reached the federal Supreme Court to render the final determination about the legal case known as Cherokee Nation v. United States. This court case exposed how the colonial relationship between the Europeans and Native America polities made the vanishing and ultimate erasure of the indigenous from the American landscape materialize. First, the Cherokee nation sued the state of Georgia for transgression treaty agreements forged at the state level regarding indigenous lands. The Cherokees also sued U.S. Congress because of Georgia state government’s contention that it had sovereign powers over indigenous lands in proscribed territories despite the fact that the Cherokees autonomously lived in land that, as a sovereign entity and a domestic-dependent nation, they had claims to. With no changes materializing, the Cherokee appealed to Congress at the federal level in order to halt the unjust and unconstitutional removal from their ancestral land in the state of Georgia. Even though the US Congress was supposed to judge the legality of the act by looking at the precepts enshrined in the U.S. Constitution, they refused to prevent the state of Georgia from encroaching on Cherokee sovereignty. The Cherokee nation was thus forced to appeal to the U.S. Supreme Court to adjudicate the dispute and act as the final arbiter for this case. The Cherokee argued to the Supreme Court that they retained the legal right to live on their ancestral lands, a major component of peace treaties signed between the Cherokee and the state of Georgia. Thus, the state of Georgia did not possess the constitutional right to forcibly remove the indigenous peoples from their state-sanctioned lands. The Cherokee further testified that the federal government retained the ability and power to intervene in state matters if the state government carries out certain policies or sanctions certain acts that are unequivocally unconstitutional. The Supreme Court, however, responded to the plaintiffs that it did not have the jurisdiction to even hear the Cherokee’s case let alone render a decision because the Cherokees comprised a “domestic dependent nation,” rather than a foreign one. Native Americans-especially the Cherokees—were thus categorized as and thrust into a legal grey area as a “domestic-dependent nation,” which enabled the state of Georgia to infract the sovereignty of the Cherokees and forcibly uproot them from their ancestral lands and force them to migrate elsewhere. Thus, the Indian Removal Act provided a legal problem that has yet to be resolved within the context of constitutional validity (167). This violation of native-American and U.S. treaties with indigenous tribes unequivocally benefited white colonists and subjected the subaltern to adverse treatment by violating the legal rights of Native Americans codified in the U.S. Constitution.
Another significant precedent set by the Supreme Court regarding how Native Americans were perceived and treated. In this case, the plaintiffs wanted to procure particular land grants that had been personally made by Native American tribal chiefs and were recognized by the U.S. government. The Court ruled that “the title of land which has been discovered and conquered belongs entirely to the conquering nation, subject only to the right of those natives present to occupy the land” (Johnson v. McIntosh). This court case centered on two land grants by indigenous tribes to private individuals. One case transpired in 1773 and the other one only two years later. The land grants were located in Illinois and Piankeshaw nations. The plaintiff asked for the U.S. government to recognize that land as belonging to him in title because the land had passed under state-sanctioned grants. However, the Court ruled that only the federal government, and not state governments, could establish indigenous titles to land grants, so only the feds retained the legal authority to sign treaties with tribal nations and buy land. This court case is seminal in the counter-narrative proffered from the indigenous point of view because it codified the status of Native American tribes have in the present. This case set a legal precedent that the ancestral lands that the Native Americans occupied was in theirs in the first place, although the federal government could seize their land much easier due to the lack of competition between the state and the feds.
Finally, the passage of the Dawes Act in 1887 further inscribed the “myth of the vanishing Indian” into law by quantifying indigineity. It established the prerequisite for being considered Native America that a person had to have one hundred percent indigenous blood, which created a blood quantum for the inclusion of an individual in a tribal nation. This policy facilitated this discursive rendering of the disappearing Indian vis-à-vis strict rules for inclusion while those with any drop of nonnative blood was legally excluded. The legal construction of the indigenous thus fortified the America prerogative to expand westward due to the fact that the natives had abandoned their land, which resulted in wide open spaces and a vacuum that must be filled by the colonists.
The resettlement and virulent treatment of Native American tribes such as the Kumeyaay and Quimi—two tribes belonging to the Band of Viejas in the American Southwest—demonstrates the violence inflicted upon the indigenous population by the Euro-American colonists both past and into the present day. Once resettled, the Band of Viejas Indians confronted a plethora of adverse environmental conditions such as filthy air, water pollution, lack of access to adequate sanitation mechanisms which made them ore susceptible to hazardous carcinogens emitted by waste disposal practices done in close proximity to where the natives lived. The environmental racism experienced by the native Band of Viejas Indians inhabiting much of San Diego County reflects the grim reality that indigenous nations—as a result of their sovereignty and cultural practices being closely tied to their ancestral lands—represents the most salient and contemporary form of internal colonialism vis-à-vis sexual violence waged against indigenous communities that have endured the pejorative connotations attached to a violent historical legacy marked by “heteropatriarchy, settler-colonialism, and white racism” (Smith 40). Recent events regarding the refused repatriation of Kumeyaay remains by UCSD as well as the ubiquity of individuals “playing Indian” in public spaces exposes the persistence of such a violent history. Thus, this violent legacy of racial hatred must be recognized and dismantled by both raising awareness regarding the appropriation of native or indigenous imagery in the present-day and advocating for widespread grassroots movement to chafe against institutional and structural racism so that meaningful change for indigenous peoples materializes.
Silva uses a lot of Hawaiian vocabulary and language in her writing in order to underscore the fact that her intended audience was Hawaiians rather than a broader public. It also reifies the authenticity and connection to Hawaiians.“Kanaka Maoli” refers to a native or indigenous Hawaiian in the Hawaiian language. While some Hawaiians are pushed to be Americanized by their families, while others seek to cling to their Hawaiian identity and culture and thus refuse to assimilate. During the 1870s, a litany of political movements were taking place on the mainland of the United States, and they soon spilled out and disseminate abroad and to the islands. Hawaiians decided that it was important to maintain their Hawaiian identity rather than allow it to be subsumed under a hegemonic U.S. culture constructed on the ideology of whiteness. “Haole” means white person or foreigner and has a negative and pejorative connotation. As such, language was of paramount importance to the Hawaiians because it shows that Silva along with other authors speak directly to Hawaiians, so language rather than physicality serves as a form of resistance that provides ethnic solidarity amongst Hawaiians writing to a general audience but to the native Hawaiians. Resistance thus is waged through
songs and political writings. Songs indeed are multi-layered, nuanced and written in a way that only Hawaiians can understand them. The power of language is unequivocal, and many other historians missed the significance of these songs because they do not know how the Hawaiian language functions or the cultural story of Hawaiians and their songs.
The annexation of Hawaii during the 1890s relates to U.S. imperialism that was taking place around the globe. In 1887, King Kalikawi , the then king of Hawaii who had formerly been a missionary, turned into sugar plantation owners in Hawaii who were sick of being ruled by the Hawaiians. With armed forces, these white missionaries forced the Hawaiian king to severely revise the rules in order to profit and give power to whites in Hawaii. The signing of the so-called Bayonet constitution took place soon thereafter, which entailed the altering the Hawaiian constitution. In 1889, Robert Wilcox initiated a rebellion as a defiant nationalist who wanted to restore power to Hawaii. In 1893, Queen Liliuokalani was overthrown after attempts to restore rights to the Hawaiian people by reversing the Bayonet Constitution.
During this time period, the president of the United States was Grover Cleveland. Cleveland did not really want to actually annex Hawaii because he feared that the annexation of Hawaii would incorporate more “black people” into America. In 1894 the Naiwani Rebellion broke out as native Hawaiians tried to secretly buy a ship loaded with guns in San Francisco and store the arms at someone’s house. The rebels tried to be covert and stealthy about their plot, but ultimately their plans unraveled when the police were appraised of the imminent insurrection. As a result, many Hawaiians fled the country. As a result of the police finding out about this nefarious plot, Queen Liliuokalani was imprisoned for over a year in the palace. During the year of imprisonment, Queen Liliuokalani used that time to engage in forms of resistance such as song writing. A prolific writer, the queen wrote about Hawaiian nationalism in order to bid her people farewell.

Petition drives were set up saying that the Hawaiian people do not want to be annexed

n these petition drives, women played a prominent role in fomenting and promoting Hawaiian nationalism. They were active political actors, which was strange to the Americans because women within the Eurocentric narrative erre not supposed to be involved in any way in public or politics. In Hawaii, though, women had always been involved in politics. The petition garnered over 36,000 signatures, so Hawaiian representatives went to Washington feeling confident that the Hawaiians had enacted change for themselves. Indeed, the cadre of Hawaiian representatives had managed to persuade some senators to not support the annexation of Hawaii. In 1898 the Spanish-American War broke out, also known as “splendid little war”, which was perpetrated by the U.S. with the goal of “liberating” the Filipinos from the foreign rule of Spain. In Newland’s Resolution, it stated that Hawaii was a coaling station for the U.S. navy during the Spanish American War. Thus, in the US’s militaristic war strategy ignored all of the work that the Hawaiians did in focusing on the foreign war. Finally, the U.S. annexed Hawaii at the conclusion of the Spanish-American War. It took a long time for the United States to officially annex Hawaii because of the attitude of the president/U.S. leadership. Hawaiians were viewed as a black race who threatened to take over white America

Works Cited

Allen, Austin. “How to Write the Great American Indian Novel.” Poetry Foundation. N.d. Web. N.p. 25 Mar. 2015,
Lipsitz, George. How Racism Takes Place. Philadelphia: Temple UP, 2011. Print.
Beck, D. R. (n.d.). The Myth of the Vanishing Race. The Myth of the Vanishing Race. N.d. Web. N.p. Accessed 25 Mar. 2015
Foner, Eric Give me Liberty!: an American History (Seagull third ed.). New York: W.W. Norton, 2012. Print.
Poupart, Lisa M. "The Familiar Face of Genocide: Internalized Oppression among American Indians." Hypatia 18.2 (2003): 86-101. Project Muse. Web. 25 Mar. 2015.
Washburn, W. E. The American Indian. New York: Harper & Row Publishers, 1975). Print.

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