ustrader
Feb 25 2008, 04:08 PM
The argument of Razin apparently a devotee of steng'kä rä'zēn and Soviet envying Putin-autocracy, is a distorted collaboration of which came first, the egg and or chicken, and the fairy tell of Humpy Dumpy, the egg who fell from the wall and all his men could not put Humpy Dumpy back again.
In both laments of distorted facts he illustrates that narrow single sided view of literacy is in his mind, far better in intellectual capability than comprehensive multi-sided views of facts and reality.
The problem is that Mr. Means has always acted in a Lakota Centric way when the issue is Native American as a whole and the recalibration of Native inhabitant’s the world over are a never ending process of who stole it first and last, of the world’s lands, long stolen and re-stolen on every continent and in every nation or land, is both impractical and an undue hardship on current nations and peoples of the world.
Means group is not even in comprehensiveness a majority representative of all the native American tribes that can lay claim to this territory he claims belongs to a few selective isolated sub-sects within a larger group and groups of diverse Native American Tribes historically linked to the region he claims his.
Mr. Means Putin-ized claim does not include any of the three other tribes of even Sioux to which his sub sect belong, the Oglala Sioux Tribe, Rosebud Sioux Tribe, and even the majority of other Lakota peoples, not to mention the Crow, The Black Feet, the Arapaho, the Northern Cheyenne, all of whom, during just the history of the United States alone, have controlled and or been pushed off these claimed lands by many, if not all, the other named tribes claiming it at one time or another.
Among many Tribes, the consensus has grown in vast majority that in fact Mr. Means and his Sub-sect of Lakota centric litigation in similar efforts before have in fact now taken many legal remediates away from ALL native Americans via case law and statutory changes resulting the repeated litigation losses he and those likeminded with him have before undertaken and lost.
His greatest diminution of Native American claims to “some” lands taken more than 150 years ago by “executive” rather legislative ratification authority, was sweep away beginning with his efforts in 1972 with trail of broken treaties reckless efforts that had merits substantiated by the “Tribal twenty points” solution. A substance that Mr. Means radicalized group lost in an overly aggressive fit of stupidity that took the focus off the twenty points and onto the aggression of destructive acts and threats of violence by those like Mr. Means.
Among the Twenty Points were several (points one, two, four, five, six, seven, and eight) which involved restoration of the authority to make treaties with Indian communities, with the need to enforce treaty provisions for the protection of Indian individuals and with the need to place all Indian people under a new general category of status to be known as "treaty relations."
The treaty points were most strenuously rejected by members of the administration task force on the vague grounds that the subsequent acts and rulings and theIndian Citizenship Act of 1924 had precluded the United States from dealing with Indian tribes by treaty because the individual members thereof happened to be United States citizens.
This was. in effect upheld, in a 1980 Supreme Court decision, in differing only that the Tribe was owed monetary compensation, not separate nation status or secession authority and or the retaking of land taken.
A U.S. Supreme Court decision in 1980 awarded the tribes $122 million as compensation, but the court did not award land. The Lakota have refused the settlement. (As interest accrues, the unclaimed award is approaching $1 billion.)
More perversely Mr. Mean’s Lakota centric position on an International litigation and recognition level would not afford his native American tribe and now all the rest, a recourse against the United States, who bought the vast majority of the land claimed by France from them in the Louisiana Purchase. Similarly, now thanks to Mr. Means, many other tribes whose land came into US hands, were prior to that claimed by nations such as Austria-Hungary, Russia, Great Britain, Spain and others, wherefrom most of the land the US ended up with was either paid for out right and or were paid for, even if taken in war.
This issue too was litigated similarly in The seminal case Johnson v. M’Intosh provided the opportunity whereby to expand the Euro-American foothold. Although he acknowledged both the “impossibility of undoing past events and the fact that the sovereign he represented was born in sin,” and although he recognized that Indian tribes were as yet independent political communities in retention of original rights to property and self-governance, Chief Justice John Marshall accepted the extravagant arguments that European discovery—not Indian occupancy—constituted ultimate title to lands in the U.S.and that conquest by the discovering sovereign conferred good title.
While Marshall conceded that such arguments “may be opposed to natural right,” he drew from the doctrine of stare decisis, comparisons to the practice of other states, and ultimately a jurisprudential affirmation of the “inferiority” of Indian nations to find that “if [such arguments] be indispensable to that system under which the [U.S.] has been settled, and be adapted to the actual condition of the two people, it . . . certainly cannot be rejected by Courts[.]” Although the progressive Marshall intended to impose legal limits on the future conduct of conquerors less charitably disposed toward Indians than he, “5 McIntosh fueled subsequent claims that “Indians were conquered as soon as John Cabot set foot on American soil,” “that it only required the inevitable march of history to carry out this preordained outcome,” and that “tribal property rights are not . . . rights at all, but merely . . . revocable licenses, or . . . ‘permission by the whites to occupy.’
Trust Doctrine: Cherokee Nation v. Georgia
Subsequent cases further diminished tribal sovereignty over Indian land. In the 1831 case, Cherokee Nation v. Georgia, the second in the Marshall Trilogy, Chief Justice Marshall determined that, despite their retention of reserved rights, to include occupancy of their lands subject only to voluntary cession, Indian tribes were mere “domestic dependent nations” under U.S. “pupilage,” not sovereign foreign nations or States within the meaning of the Constitution, and that as a result the Court could not take original jurisdiction over a case wherein the Cherokee sought to enjoin enforcement of the laws of Georgia on land guaranteed by treaties.
Although Marshall held that the U.S. owed a common-law trust duty to Indians, not only was this duty judicially unenforceable, but an examination of the other justics’ opinions, construing the U.S.-Cherokee relationship as that between a conqueror and a subject pople, hinted that the “trust doctrine,” true to its roots in medieval Christian xenophobism, would become yet another legal tool with which to diminish Indian sovereignty.
In short order, the U.S. claimed trust title to all Indian lands within U.S. borders. Although the trust doctrine generated a host of express obligations in the context of subsequent treaties, statutes, and executive orders creating Indian reservations, political pressure ensured that these judicially unenforceable obligations were almost never discharged with “good faith and utter loyalty to the best interests” of the Indian tribes.
Plenary Power: Worcester v. Georgia
In Worcester v. Georgia, Marshall interpreted the Commerce Clause 109 to hold that Congress had “plenary” power over Indian affairs.
Although the precise meaning of the term “plenary” was not subject to ready determination, its purpose was plain, and by 1900 Congress qualified all remaining tribal powers by express legislation. Moreover, by the late 1840s, with the military power calculus shifting and gold discovered out West, “whites c[ould] no longer be kept out of Indian country.”
By adding plenary power to the legal arsenal, Worcester and its progeny ushered in a violent phase of U.S. expansion, executed under the rubric “Manifest Destiny.”
Over the next several decades the Army prosecuted a sequence of wars to perfect discovery by divesting Indians of their possessory interest.
Still other wars were fought to suppress Indian unrest after U.S. violations of Indian treaties.
After each genocidal campaign, a dwindled, harried, and hungry Indian nation in extremis sued for a peace that surrendered vast tracts of lands and political freedom in exchange for dependence and “civilization.” During the first decade after the Civil War the U.S. acquired nearly 1/4 of the land within its modern contiguous boundaries entirely free of any legal obligation to pay more than token compensation.
Yet despite distribution of millions of cheap acres to settlers the national greed for space, fueled by an evolving inter-branch compact authorizing gratis takings, dictated confiscation of most of the remainder of Indian Country. In 1871 Congress exercised plenary power to strip away the last formal vestiges of Indian juridical sovereignty by providing that “hereafter no Indian nation or tribe . . . shall be acknowledged or recognized as an independent nation, tribe, or power with whom the United States may contract by treaty.”
No longer compelled as a matter of U.S. law to treat Indian nations as foreign sovereigns, the U.S. could now acquire Indian land without even the pretense of consent, and Congress, unwilling to allow “(a)n idle and thriftless race of savages . . . to stand guard at the treasure vaults of the nation[,]” gave the Army free rein to employ genocide to crush the last obstacles on the march to the Pacific.
5. Allotment to Present
By 1887 all two billion acres of the U.S. continental landmass had been discovered, conquered, and expropriated save for 138 million acres apportioned to Indian reservations, which the General Allotment Act of 1887 [“Allotment”] targeted for dismemberment. Allotment, an exercise of plenary power, subdivided large swaths of communally-owned tribal lands into parcels for the private use of individual Indian allottees under a 25-year period of U.S. guardianship.
Upon expiration of the trust period the U.S. issued an unrestricted fee patent to allottees who proved “competence,” assumed U.S. citizenship, and paid property taxes.
For most tribes, Allotment was devastating: although tribal governments remained in situs on vestiges still under trust protection, by encouraging Indian individuals to formally withdraw from the tribe for a per capita share of tribal land, and by punishing the failure of unemployed allottees to pay taxes with foreclosure, reversion of title, and sale to white speculators, Allotment abolished Indian reservations as autonomous and integral sociopolitical entities.
Although several tribes attempted to block Allotment, the Supreme Court ruled not only that Indian land was subject to the sovereign right to take for public use upon payment of just compensation, but that takings of Indian land, described by Congress as a legitimate form of “investing for the tribe” that did not require either consent or notification, were precluded from judicial review.
By 1934, Indian lands had been reduced by a further 90 million acres, with 26 million lost through fraudulent transfers, and of the two billion acres of formerly contiguous tribal landholdings all that remained was a fragmented, 47 million acre mosaic of reservation lands under trust, plots owned in fee simple by whites,
and plots held by Indian individuals no longer members of any tribe. 95,000 Indians were landless.
In sum, the synergy of discovery, the trust doctrine, and plenary power as manifested in caselaw and federal policies perfected the legal theft of Indian land.
Despite infrequent restitution and compensation of Indian land,138 the Constitution affords no protection to Indian tribes, and what remains of their landbase continues under siege. The U.S. currently wields absolute, unreviewable power to continue the conquest of Indian nations that have not yet been forced to sign a treaty . . . [and to] take land held under original title as it pleases, . . . without any constitutionally mandated obligation to pay compensation for the taking of land possessed by Indian nations for thousands of years, and despite the fact that the members of such tribes are United States citizens otherwise protected by the Constitution
As you can the 1980 Supreme Court ruling upheld in effect all the prior rulings excepting a value for some lands expropriated without any legal foundation not in right to take them and keep them but in payment only for them.
It can be argued convincing now, that most lands current Native Americans lay claim to as their own were taken by them from others in an evolution of territorial raids and loses by many tribes before the Europeans came to claim the same land and from such claims transferred to the United States as owned territory of most of the former European Colonialist Empires. Even Russia, who stole the NW territory and Alaska from Native Americans then selling it in yet another Russian bankruptcy that has been a regular occurrence form them for centuries.
In an International pedigree of Indigenous peoples or aborigine rights scenario as to claims of ownership, a battle for reclamation, repossession or even separate sovereignty would lay a lot of Indiginious peoples claims in door steps of Europe, who, may in the end, having laid legal sovereign claims to most of the lands in question encompassing Native lands the world over, and having been paid for most of it by the later self determining United States, may have to pay for it all though now, the issue is legally mute.
I do not see much sympathy in a very complicit International forum who themselves face legal challenge, if original claims are the paramount basis of claims to lands, from which other groups have subsequently taken from former indigenous peoples, long pushed from it or assimilated under the latter’s dominance.
Our friend mentioned Kosovo and a Serb claim to it, when in fact many prior occupants of indigenous people and conquering colonial empires might have an even greater claim if the grounds would base on the false ideals of Mr. Means that the lands were his tribes solely and exclusively.
In truth, the so called Slavic Serbs took what is Kosovo from its native peoples in the 12th century. The so called Serbs then lost what is now Kosovo, in 1389 to Ottoman Empire. The Serbs did not regain control of what is Kosovo until 1912, where like in the 1990’s , they attempted to drive out the majority Albanians in similar efforts of genocide. Even with Serbia long control of last 90 + years today Albanian still make up 92% of the population in exact opposite of current Serbia, which is 94% Serbian.
There have been centuries of Serb/Albanian Turkish genocide, proving unquestionably like any who are proven incompatible and prone to violence on those most incompatible to them, separation is far wiser than continuing the same hate filled murderous trends that have never come close to being resolved in a compromising way of co-existences.
A minor cursory review of the historical interchanging ethnic religious and national vacillations of occupants to the lands of said Kosovo leave a lot of claimants to pick from.
Though I have a natural sympathy for the Native America rights issues, its legal basis has long outlived its day, like slavery’s repatriation, a colossus of unabridged links as much as anywhere returns to the source of slavery, Africans trading Africans to Europeans, to be sold to Europeans long in majority of provable linkage, before there was a United States and even afterwards more so at the source of this African European contributory malaise in Africa, Europe and Caribbean Colonial Empire of Europe.
No better case law exist in the world than the Supreme Court case involving the Spanish slaver trade ship the Armestead, of late, in part fiction, made into a movie of the same name.
That is all!!
