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.16.Ibid.17.Ibid.at 572 73.18.This doctrine, of course, was remarkably self-serving and couched ininvidious comparisons and metaphors.Yet it was put forward in good faith, supportedby substantial legal and philosophical authority.19.Johnson, 21 U.S.at 574.20.Ibid.at 587.21.Ibid.at 588.It is well to remember the fragility of the Supreme Court in 1823.It was the weakest of the three branches of government, and its ability to confront actsby either the legislative or the executive branch was not well-established.22.Ibid.at 591 92 (emphasis added).23.This withholding of natural law rights to Indians also characterized theMarshall Court s jurisprudence in regards to African American slaves.See, e.g.,G.Edward White, History of the Supreme Court of the United States: Volumes III IV TheMarshall Court and Cultural Change, 1815 1835 (Oxford University Press, 1988), 680 81:The reconstituted natural law argument, on its face, seemed particularlygermane to cases affecting two racial minorities in the early Americannotes to pages 263 267 393republic, black slaves and Indians.Black slaves were persons unquestion-ably deprived of liberty in a nation that had declared itself to be committedto liberty as a natural right; Indians were persons being dispossessed ofproperty, because of their status, in a nation whose founders had taken theright to hold property to be inalienable.That these commitments had notbeen embodied in positive laws giving unqualified protection to the libertyand property rights of black slaves or Indians was not necessarily decisive,given the respectability of unwritten maxims of natural justice and commonhumanity as sources of early American law.Indeed, the stature of thenatural law argument and the contradictions between natural law preceptsand the treatment of slaves and Indians created pressure on positivelaw itself.But the reconstituted natural law argument was not to prevail in casesinvolving discriminatory treatment of blacks and Indians.Those minoritiesremained outside the circle of groups whose rights were recognized andexpanded in early-nineteenth-century America.And not only did theenslavement of blacks and the dispossession of Indians coexist with anexpanded recognition of the liberty and property rights of white males, thenatural law argument was itself tempered and eventually undermined inracial minority cases.See also discussion in chapter 4.24.30 U.S.(5 Pet.) 1, 16 (1831).25.31 U.S.(6 Pet.) 515, 543 (1832).26.Ibid.27.Cherokee Nation, 30 U.S.at 17.28.Ibid.at 25.Justice Johnson believed that the Cherokees did not really possessany territory and hence [t]heir condition is something like that of the Israelites, wheninhabiting the deserts. Ibid.at 27.29.Ibid.at 21.30.Ibid.31.Ibid.at 53 (Thompson, J., dissenting.Dissent joined by Justice Story).JusticeThompson s dissent cited Vattel s Law of Nations as its sole authority for theseprinciples of international law.32.Ibid.33.Ibid.at 54.34.Ibid.35.Ibid.36.Ibid.at 18.37.Worcester, 31 U.S.at 560 61.38.Ibid.at 561.39.Anaya, Indigenous Peoples, 31.40.Ibid.41.House of Commons, Select Committee on Aboriginal Tribes, Report (1837) at86, as quoted ibid.at 32.394 notes to pages 267 27242.Indian Commissioner Nathaniel G.Taylor writing on the question Shall ourIndians be civilized? in the Annual Report of the Commissioner of Indian Affairs,November 23, 1868, reprinted in Documents of United States Policy 123, 126 (FrancisPaul Prucha, 2d ed., 1990), quoted in Anaya, Indigenous Peoples, 32.43.Anaya, Indigenous Peoples, 33.44.Cherokee Nation, 30 U.S.at 17.45.Anaya, Indigenous Peoples, 33 (quoting 10 Institut de Droit International,Annuaire (1888 89), 203 (translation from Alpheus Snow, The Question of theAborigines in the Law and Practice of Nations (Metro Books, 1972 ed.), 174 75.46.Ibid., 33 (quoting Covenant of the League of Nations art.23(a) ).47.187 U.S.553 (1903).The case is discussed in extensive detail in chapter 5.48.Ibid.at 568 (emphasis added).49.This absence of judicial review in the context of the trust relationship wassubsequently modified by such cases as Delaware Tribal Business Comm.v.Weeks, 430U.S.73 (1977) and United States v.Sioux Nation of Indians, 448 U.S.371 (1980).In themodern era, the trust relationship in Indian law has developed to provide a potentialcause of action against the United States if a tribe can demonstrate that there is a bonafide trust involving control and supervision of tribal assets rather than a bare trust.See, e.g., United States v.Mitchell (Mitchell I), 445 U.S.535 (1980), and United States v.Mitchell (Mitchell II), 463 U.S.206 (1983).50.Anaya, Indigenous Peoples, 49.51.Ibid.52.Ibid., 50.53.Ibid.54.Ibid.55.United Nations Charter art.1, para.2.56.Ibid.at art.1(3); see also art.55(c).57.Ibid.at art.55(a).58.Ibid.at art.71.59.ILO Convention (No
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