During the last forty years, the Aboriginal peoples of the Americas, of the British Commonwealth, and of other countries colonized by Europeans over the last five hundred years have demanded that their forms of property and government be recognized in international law and in the constitutional law of their countries. This broad movement of 250 million Aboriginal people has involved court cases, parliamentary politics, constitutional amendments, the United Nations, the International Court of Justice, the development of an international law of Aboriginal peoples, and countless nonviolent and violent actions in defense of Aboriginal systems of property and cultures. The Aboriginal peoples of New Zealand, Canada, and the United States have been at the forefront of the movement, and it is in these countries that the greatest legal recognition has been achieved.

https://www.cambridge.org/core/services/aop-cambridge-core/content/view/S0265052500004477

The Cherokee Cases: A Study in Law, Politics, and Morality

Aboriginal Property and Western Theory: Recovering a Middle Ground*

This study examines the history of Indian-settler legal relations in Indiana, from the state’s pre-territorial period to the late-nineteenth century. Through a variety of interdisciplinary sources and methods, the author constructs a broad narrative on the evolution and co-existence of Native and non-Native customary legal systems in the region, focusing on matters related to marriage, property rights, and testimony. The primary thesis - which emphasizes reciprocally formative relations, rather than persistent conflict - suggests that Indiana’s pre-modern legal past involved an ad hoc yet highly effective process of cultural brokerage, reciprocity and inter-personal accommodation. That the American Indians lost much of their self-governing status following the period of contact is clear; however, a closer look at the ways in which nations historically defined, exercised, asserted, and shared jurisdiction, reveals a more intricate story of influence, authority, and concession. During the French and British colonial and American territorial periods, settler society adjusted to and often accommodated Native concepts of law and justice. Through a complex order of social obligations and community-based enforcement mechanisms, a shared set of rules and jurisdictional practices merged, forming a hybrid system of Indian-settler norms that bound these individuals across the cultural divide. When Indiana entered the Union in 1816, legal pluralism defined jurisdictional practice. However, with the nineteenth-century rise of legal positivism - the idea of law as the sole command of the nation-state, a sovereign entity vested with exclusive authority - territorial jurisdiction and legal uniformity became guiding principles. Many jurists viewed the informal, pre-existing custom-based regulatory structures with contempt. With the shift to a state-centered legal order, lawmakers established strict standards for recognizing the law of the “other,” ultimately rejecting the status of the tribes as equal sovereigns and forcing them to concede jurisdiction to the settler polity.

/pdf/according-to-the-custom-of-the-country-indian-marriage-30y6v3fdy2.pdf

“according to the custom of the country”: indian marriage, property rights, and legal testimony in the jurisdictional formation of indiana settler society, 1717-1897

This article seeks to chart the shifting post-frontier strategies whereby Indian societies were incorporated into US society. Recognised as techniques of settlement, US policies that have been view...

https://researchbank.swinburne.edu.au/file/804d2242-8841-4e04-957d-83450d524ad5/1/PDF (Settler Colonial Studies 1_1 - Wolfe).pdf

After the Frontier: Separation and Absorption in US Indian Policy

Demanding the Cherokee Nation

We claim that the “constitution, and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land.” But we also claim to recognize the sovereignty of Native American nations, the original occupants of the land. These claims—one to jurisdictional monopoly, the other to jurisdictional multiplicity— are irreconcilable. Two hundred years have produced no resolution of the contradiction except at the expense of the tribes and the loss to non-Indians of the Indians' gift of their diflerence. This article explores the bearing of American constitutional law upon Native American tribes.

The Cherokee Cases: A Study in Law, Politics, and Morality

Citations

Aboriginal Property and Western Theory: Recovering a Middle Ground*

“according to the custom of the country”: indian marriage, property rights, and legal testimony in the jurisdictional formation of indiana settler society, 1717-1897

After the Frontier: Separation and Absorption in US Indian Policy

Demanding the Cherokee Nation

Constitution, Court, Indian Tribes

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