Steven Newcomb: Rethinking notions behind federal Indian laws
Posted: Friday, June 8, 2012
"In 1982, the National Lawyers Guild published a book entitled Rethinking Indian Law. It was, in part, a collaborative effort between the Guild and Tim Coulter of the Indian Law Resource Center (ILRC). In an essay contributed by the Indian Law Resource Center, Mr. Tim Coulter said that an assertion had been made in the 1800s “that the right of discovery gave the discovering nations and later the United States the absolute rights of property and dominion over Indian lands.” Mr. Coulter said that this was “a warped misuse of the original discovery doctrine.”
According to Mr. Coulter, there was an “original conception” of the right of discovery and a “subsequent misuse” of that doctrine. The two versions can be best understood, he said, by comparing quotations from two major opinions by the Supreme Court: Johnson v. M’Intosh and Worcester v. Georgia (1832). In support of his theory, Mr. Coulter selectively quoted from the 1823 ruling Johnson & Graham’s Lessee v. M’Intosh.
Mr. Coulter then used a quote from Worcester v. Georgia, in which Chief Justice John Marshall was dismissive of the idea that merely sailing ships along the coast could give the sponsoring monarchy or country a claim of “dominion” over the entire continent. By combining his selected quotes from the Johnson and Worcester rulings, Mr. Coulter made it seem as if, by the time of the Worcester ruling, the Supreme Court had not advanced the idea that “discovery” had resulted in the first “discoverer” asserting or assuming “dominion” in relation to the Indian lands of the continent."
Get the Story:
Rethinking Indian Law 30 Years Later
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