Skip to main content Accessibility help

We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.

Close cookie message
×
Hostname: page-component-78c5997874-t5tsf Total loading time: 0 Render date: 2024-11-03T15:46:59.667Z Has data issue: false hasContentIssue false

7 - Settlers and natives in North America

Published online by Cambridge University Press:  05 June 2012

By
Mahmood Mamdani
Edited by
Ian Shapiro ,
Susan C. Stokes ,
Elisabeth Jean Wood  and
Alexander S. Kirshner
Mahmood Mamdani
Affiliation:
Columbia University
Ian Shapiro
Affiliation:
Yale University, Connecticut
Susan C. Stokes
Affiliation:
Yale University, Connecticut
Elisabeth Jean Wood
Affiliation:
Yale University, Connecticut
Alexander S. Kirshner
Affiliation:
Yale University, Connecticut
Get access

Summary

A colonized population

The legal position of Native Americans under US law has been the subject of two key debates. The first revolves around state versus federal claims to sovereignty over Native Americans. The second is over the relationship of Indians to the political community that is the United States. The first debate has been resolved in favor of federal sovereignty. The second has revolved around two issues – tribal autonomy and individual citizenship rights – and has yet to reach a satisfactory resolution. Tribal autonomy is subject to federal plenary powers; at the same time, Native Americans are a special class of citizens: both citizens and wards of the United States, they are without any constitutionally guaranteed rights.

State sovereignty was historically the preferred shield for settlers wanting to advance local interests. States vied in the courts for full jurisdiction over Native Americans and African-Americans residing within their boundaries and, in extreme cases, went to war over it. State v. Forman (1835) was the first case to confirm state criminal jurisdiction over Indian tribes in direct contradiction to Supreme Court decisions to the contrary (Harring 1994: 42). By the 1880s, most states with significant Indian populations asserted such criminal jurisdiction and simply exercised it. Some, such as California, did so expressly by statute; others, such as Wisconsin and New Mexico, did so with support from judicial opinions under existing state law (ibid.: 49–50).

Type
Chapter
Information
Political Representation , pp. 159 - 208
Publisher: Cambridge University Press
Print publication year: 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

Amar, Akhil Reed. 2006. America's Constitution: A Biography. New York: Random House.Google Scholar
Castile, George Pierre and Bee, Robert L. (eds.). 1992. State and Reservation: New Perspectives on Federal Indian Policy. Tucson and London: University of Arizona Press.
Cherokee Nation v. Georgia. 1831. 30 US 1; 8 L. Ed. 25; 1831 US LEXIS 337. Decided, pp. 16.
Churchill, Ward. 2001. A Little Matter of Genocide: Holocaust and Denial in the Americas, 1492 to the Present. San Francisco: City Lights Publishers.Google Scholar
Cohen, Felix. 1942. Handbook of Federal Indian Law. Washington DC: Department of the Interior.Google Scholar
Congressional Record, XXXVI: 567.
Deloria, Vine 1988. “The Red and the Black,” in Custer Died for your Sins: An Indian Manifesto. Norman: University of Oklahoma Press, 168–96.Google Scholar
Dred Scott v. Sandford. 1856. 60 US 393.
Ex Parte Crow Dog. 1883. 109 US 557.
Findlay, John M. 1992. “An Elusive Institution: The Birth of Indian Reservations in Gold Rush California,” in State and Reservation: New Perspectives on Federal Indian Policy, ed. Castile, George Pierre and Bee, Robert L.. Tucson and London: University of Arizona Press, 13–37.Google Scholar
Foner, Eric. 1988. Reconstruction: America's Unfinished Revolution. 1863–1877. New York: Harper and Row.Google Scholar
Hall, Anthony. 2005. The American Empire and the Fourth World: The Bowl With One Spoon, vol. I. Montreal: McGill-Queens University Press.Google Scholar
Harring, Sidney L. 1994. Crow Dog's Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century. Cambridge: Cambridge University Press.CrossRefGoogle Scholar
Hoxie, Frederick E. 2001. A Final Promise: The Campaign to Assimilate the Indians, 1880–1920. Lincoln: University of Nebraska Press.Google Scholar
Huhndorf, Shari M. 2001. Going Native: Indians in the American Cultural Imagination. Ithaca, NY: Cornell University Press.Google Scholar
Johnson, Kenneth W. 1973. “Sovereignty, Citizenship and the Indian.” Arizona Law Review 15 (4): 974–1003.Google Scholar
Johnson v. M'Intosh (1823) 21 US 543.
Kiernan, V. G. 1978. America: The New Imperialism, From White Settlement to World Hegemony. London: Zed Press.Google Scholar
Macleod, William Christie. 1928. The American Indian Frontier. London: Kegan Paul.Google Scholar
Macpherson, C. B. 1964. The Political Theory of Possessive Individualism. Oxford: Oxford University Press.Google Scholar
McRae, Kenneth D. 1964. “The Structure of Canadian History,” in The Founding of New Societies, ed. Hartz, Louis. New York: Harcourt Brace, 219–62.Google Scholar
Mamdani, Mahmood. 1996. Citizen and Subject. Princeton, NJ: Princeton University Press.Google Scholar
Mekeel, Scudder. 1944. “An Appraisal of the Indian Reorganization Act.” American Anthropologist 46 (2): 209–17.CrossRefGoogle Scholar
Newton, Nell Jessup. 1983–4. “Federal Power over Indians: Its Sources, Scope and Limitations.” University of Pennsylvania Law Review 132 (2): 195–288.CrossRefGoogle Scholar
Pagden, Anthony. 1998. Lords of all the World. New Haven, CT: Yale University Press.Google Scholar
Prucha, Francis Paul. 1973. Americanizing the American Indian. Lincoln: University of Nebraska Press.CrossRefGoogle Scholar
Prucha, Francis Paul. 1976. American Indian Policy in Crisis: Christian Reformers and the Indian, 1865–1900. Norman: University of Oklahoma Press.Google Scholar
Prucha, Francis Paul. 1984. The Great Father, the United States Government and the American Indians, vol. II. Lincoln: University of Nebraska Press.Google Scholar
Smith, Rogers M. 1997. Civic Ideals: Conflicting Visions of Citizenship in U.S. History. New Haven, CT: Yale University Press.Google Scholar
Strickland, Rennard. 1985–6. “Genocide-at-Law: An Historic and Contemporary View of the Native American Experience.” University of Kansas Law Review 34: 713–55.Google Scholar
Talton v. Mayes. 1895. 163 US 376.
Trennert, Jr., Robert A. 1975. Alternative to Extinction: Federal Indian Policy and the Beginnings of the Reservation System, 1846–51. Philadelphia, PA: Temple University Press.Google Scholar
US v. Joseph. 1876. 94 US 614.
US v. Rogers. 1846. 45 US 567.
US v. Sandoval. 1913. 231 US 28.
Wilkinson, Charles F. 1987. American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, CT: Yale University Press.Google Scholar
Williams, Jr., Robert A. 2005. Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America. Minneapolis: University of Minnesota Press.CrossRefGoogle Scholar
Wilson, James. 1998. The Earth Shall Weep: A History of Native America. New York: Grove Press.Google Scholar
Worcester v. Georgia. 1832. 31 US 515.

Save book to Kindle

To save this book to your Kindle, first ensure [email protected] is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

Available formats
×