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In the Courts of the Conqueror

From Wikipedia, the free encyclopedia

In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided
AuthorWalter R. Echo-Hawk
CountryUnited States
LanguageEnglish
SubjectIndians of North America — Legal status, laws, etc — Cases; Indians of North America — Legal status, laws, etc — History
Published2010
PublisherFulcrum Publishing
Media typePrint, hardcover, paperback, electronic
Pages560 pp.
ISBN9781936218011
OCLC845875403
342.7308/72
LC ClassKF8204.5 .E28 2010

In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided is a 2010 legal non-fiction book by Walter R. Echo-Hawk, a Justice of the Supreme Court of the Pawnee Nation, an adjunct professor of law at the University of Tulsa College of Law, and of counsel with Crowe & Dunlevy.

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Transcription

Britain. The founding of nations. From the withdrawal of roman legions in 381 to william the conqueror in 1087. The Anglo-Saxon Chronicle records King William I, (the Conqueror), Duke of Normandy, wearing his crown at Salisbury in August 1086, surrounded by all of his earls, barons, and other principal landholders in his Norman kingdom of England, that was only twenty years old and won by conquest at the Battle of Hastings in 1066. These great men had gathered because a survey of the kingdom was complete, and their holdings duly recorded beyond peradventure of doubt. They had come to swear fealty and to make homage to the King for their lands, as recorded in the royal land inquiry. They were cementing a relationship of great religious moment between monarch and chief vassals, a relationship that could hardly have been more permanent than if it had been hewn in stone, like the Ten Commandments, though it was written on sheep skins, which have endured very much better than Moses' tablets. The court at Salisbury was so important an occasion in the feudal nexus of allegiance and loyalty, oaths given to the King in return for land and privileges - which the King's law would uphold for the tenant who was true to his word - that this record of landowners and their property soon became known as Domesday Book, literally, the final arbiter on ownership, duties, responsbilities, privileges that arose from the possession of land. From King William's point of view, it was the ultimate record of who owed what to the crown, as supreme landlord of England, in return for their shares in the conquest. It was the last word on property rights, and the evidence contained in it was soon thought of as the 'Last Trump of Doom,' By the end of the twelfth century, it was called Domesday Book. No one knows why for certain - perhaps because it was like the Last Judgment when the trumpets are to be sounded and Christ will come to judge the quick and the dead. The word 'doom' - D. double O. M. - is an ancient Anglo-Saxon word, meaning a a 'judgment', having the effect of a law, and we shall meet Anglo-Saxon kings' dooms later. Maybe Domesday derives from this word. But we have almost seven centuries to recount before we reach Salisbury in 1086, for the plot of this drama is long and winding, with every kind of vice and virtue displayed as we go. We shall not be able to begin to understand why there was a Norman conquest and why the new king and the ruling �lite were able, so quickly, to compile Domesday Book, a land inventory of the vast area that was England, until we understand the centuries that preceded it, and have made England, Scotland, and Wales the nations they now are. The pre-history of Britain, beginning about ten thousand years ago, after the last Ice Age, when people from continental Europe colonized this island, is barely known. There have been archaeological discoveries, and consequent speculation, but these are not history. History means recorded history, history written down, and we do not really have any of that until the middle of the first century BC in The Conquest of Gaul, written by Julius Caesar, who made two unsuccessful invasions of southern Britain, in 55 and 54BC. In my school days, we all soon learned Caesar's famous fib, veni, vidi, vici (the first Latin for most of us) - 'I came, I saw, I conquered.' Well, he came and he saw, but the conquest had to wait until AD43 and the Emperor Claudius, who conquered and annexed Britain - Britannia, as the Romans called it - the last province to be added long-term to the Roman Empire. Roman legions were withdrawn from Britain in AD381 because Rome itself was under threat, and the Island at the Edge of the World was cut adrift. I have entitled my discussion as I have because Britain was at the edge of the known world. Look at the map I have made of the Euro-Asian land mass. On the left, we have the enormous Roman Empire, on the right the enormous Chinese Empire. In between we have the Persian Empire, the Indian kingdoms and empires, the south Asian kingdoms of the Silk Road between East and West. These states and many I have not named were the civilized world as known in about AD400, though the map of the sort I am showing would have had no meaning to people then. They had writing, without which organized government is impossible; they had trade, currency, art, literature, philosophy, luxury, religion, numerical, linear-, weight-, and volume-calculation, astronomy, astrology, medicine - well, everything really, but not maps of the sort I am showing. What they had was representations of the world, like the one I am now showing, made in the second century by Claudius Ptolemy, a Greek from Alexandria, in Egypt. It was not intended as a navigation map, but - with Rome at its centre - Ptolemy's map was meant to demonstrate the overwhelming authority of Roman emperors and the civilized fineness of all things that emanated out of their great imperial city. Maps that we know in atlases and, until SatNav, in road gazeteers did not begin for another one thousand seven hundred years, in the eighteenth century. To the east of the land mass was nothing but the Pacific Ocean, and to the West the Atlantic. Except for a short visit by Vikings in the eleventh century, the American continent would not be discovered by the peoples of the Euro-Asian land mass until the fifteenth century, first, by the Chinese, who did not stay, and a bit later in that century by the Europeans, in the person of Christopher Columbus. The coastal strip of North Africa and some way down the River Nile were known, but Africa was otherwise a void until Vasco Da Gama, also in the fifteenth century, set out from Portugal, and sailed round the Cape of Good Hope, and up the east coast of Africa to India. Australia, New Zealand, and the Pacific islands were not discovered by Europeans, until the seventeenth to the nineteenth centuries: the civilized world's contribution to the last group having once been described as bringing 'gunpowder, print, and the Protestant religion' - we ought not to forget syphilis. Britain, therefore, as a place known to history, was at the very edge of the world in AD381 and would remain so for many centuries to come. In our story, we shall encounter Britons who were synonymous with Welsh and Cornish people; Angles, Saxons, and Jutes; Gauls, Franks, Frisians, Picts, and Irish who were really Scots; Norsemen, whom I shall mostly call 'Vikings' until the end of the 10th century, when I shall call them Danes; and then Normans. There will be lesser groups. Some of these races were conquerors and the Normans were the most successful conquerors of them all. What lies before us is like an enormous Hollywood epic that Cecil B De Mille might have liked to produce, but whose actors will include real people, playing themselves: Roman emperors, popes, princes, princesses, kings, queens, pirates, rapists, thieves, martyrs, holy men - bad and good - saints, story-tellers, whom we call chroniclers. Names that still resonate include SS Gregory and Augustine, the Venerable Bede, now canonized, Alfred the Great, King Cnut, Edward the Confessor, and, of course, William the Conqueror. We shall come across incomparable wealth in the treasure houses of kings and noblemen, to contrast with the meagre livelihoods of unnamed thousands of men and women, whose only fault in these tumultuous centuries was to be at the bottom of the social and political hierarchy: it was ever thus. We shall find armies and navies, battles and hostage-taking, massacres and burnings of whole towns; gruesome executions, blindings, and maimings; shocking natural disasters, attributed to acts of God visited on a wicked people. Infidelity in men, it has been well said, is as common as rain, and we shall encounter killers of their fathers, their mothers, their brothers, and their sisters - rulers who can use anyone, even a man of honour. We shall also find fabulous artworks, wise law codes, just rulers, great kindnesses, acts of selfless charity, and love affairs of the greatest intensity. It is a story mainly about how the Christian world spread and took root in the British Isles, but also elsewhere, to become the plinth on which the pillar of Western civilization stands, and to which it remains cemented, despite the rapid secularization of our society since the end of the Second World War in 1945. We used to believe in religious myths, now we believe in secular ones. Kings and emperors have been replaced by presidents and prime ministers whose acolytes and apologists include scientists, sociologists, lords of industry and commerce, journalists, television news presenters, even actors and pop singers, and people like me, you might think, as this story rolls along. You may well wonder, as we move through the centuries, whether we are making a history of Christianity, or a history of the people who now comprise what I call - not uniquely - the British Mongrel. We shall be doing both because, without Christianity, we shall never arrive at a proper understanding of the countries that comprise our islands At the Edge of the World, and Christianity - or how Christianity was interpreted - is the continuous thread that links everything together. Perhaps it still does, if in less intense ways than in the Anglo-Saxon period. I shall be digressing, throughout this documentary, from the Anglo-Saxon Christian past to the British present, in which symbols and proselytes, rituals and beliefs - having different names and titles today, being even atheistic - are essentially derived from a Christian heritage of martyrology and have their own form of righteousness, little different - except in nomenclature - from old Canon - or Church - Law, their own inquisitions, preachers, saints, and sinners. The burning debate - literally, by some lights - of Global Warming among scientists and politicians may not condemn to physical torture or to death by the scarlet flame those who question or dissent; but such dissenters, if scientists, it has been alleged, just don't get published in academic magazines and, thus, are excluded from funding. The last British government came up with the thoughtful epithet for them: 'Flat-Earthers.' Before we go into detail to set the all-important religious context of our period, we must go back again to Salisbury in 1086, where we left King William the Conqueror and his chief followers. What was England like then? (I say England not to ignore the Scots or the Welsh, but because we actually have a reasonably clear picture of the kingdom from the English chronicles and, of course, that great survey, Domesday Book itself). Jane Cox, a principal assistant keeper at what was the Public Record Office, organized an exhibition to mark the Great Survey's ninth centenary in 1986. The Public Record Office, or PRO, is now called the National Archives, lives at Kew, south-west London, and is where the original Exchequer Domesday Survey is kept and is known as Public Record No One. You can go there to see it in its air conditioned room. Mrs Cox reminds us in the guide to her Exhibition that England was probably the richest monarchy in Europe. We shall see why much later in this documentary. The land was cultuivated to a large extent in vast fields where hedgerows, which still define much of rural England today, hardly existed at all. She tells us: The primeval forests had long been cleared and the land was wooded about as much as modern France. Settlements were old established and, except for the far north, there was no spot from which half a day's walk would not bring you to a house. Many Roman roads had been maintained, communications were good, and trade flourished. The idea, therefore, that Robin Hood and his merry men, a century or so later, could hide out in Sherwood Forest, Nottinghamshire, is fiction. Indeed, as a lover of the hunt - like all great men of the time - William the Conqueror planted forests, one in south-west Hampshire, so that he could pursue this sport. That forest is still called the New Forest because it was new and it was needed in the eleventh century, the king and many of his suceessors decreed. There were still wolves and wild boar, but you may not know that there wern't any rabbits. These were introduced by the Normans for hunting with the bow. I need hardly say that there were none of the modern conveniences, but some absences, that we take for granted today, may surprise. There was no sugar. There were no potatoes, tomatoes, spinach, oranges, lemons, coffee, tea. There were no horse chestnut trees, so there were no conkers for boys to play with against each other. I remember having a sevener, a conker with which I won seven contests before it was shattered by another boy in a playground competition, where you took it in turns to hit the opponent's conker with your own, both suspended on a knotted string. Where conkers are still permitted in schools, I believe that contestants must now wear safety goggles. Wine from these shores is not new, though you might think so. Twenty-four vineyards are recorded in Domesday Book, and British wine, as it was called, is mentioned with praise by Tacitus, a Roman historian living in the early second century AD, which suggests that the climate was warm enough for vines in the outdoors. We shall continue this preparatory description in next week's episode when I shall tell you about flowers, herbs, trees we did not have, the atrocious forms of medicine available to our ancestors, and Time.

Synopsis

The book draws from both well-known decisions of federal courts as well as less well known cases in explaining the doctrines of federal Indian law. The case of Johnson v. McIntosh by the Supreme Court in 1823 is well known to most law students as declaring that Indian tribes had the right to occupy the land but only the United States held title to the land by right of discovery.

It covers other major cases, including Cherokee Nation v. Georgia (1831) (the tribe lacked standing to contest Georgia's violation of treaty rights), Lone Wolf v. Hitchcock (1903) (the U.S. had the right to confiscate Indian lands unilaterally despite treaty provisions); and Tee-Hit-Ton Indians v. United States (1955) (discovery and conquest doctrines applied even when the Alaskan natives had separate dealings with Russia).[1]

The book covers cases involving the adoption of Indian children against the will of the tribes, leading to the Indian Child Welfare Act; decisions allowing the desecration of Indian graveyards and the display of Indians remains, leading to the Native American Graves Protection and Repatriation Act; and cases on Indian religious practices, such as Lyng v. Northwest Indian Cemetery Protective Association (1988) and Employment Division v. Smith (1990). Echo-Hawk notes how federal Indian law was formed defining Indian rights and were then used, not as a shield to protect these rights, but instead to strip them away and harm Indian people.[1]

Reviews

The book has received positive reviews from a good number of academic sources. Gilles Renaud of the Ontario Court of Justice stated that the book's greatest contribution may be in explain to Native American people why they now possess so little land and have so many problems.[2] Another review points out the injustice identified in the book and recommends that it be required reading at the Harvard, Yale, and Stanford law schools since those schools produce many Supreme Court justices.[3]

In addition, the book has received good reviews from the Native American community[4] to western themed magazines.[5] The legal community has also received it well, with one reviewer asking, "What if it is really true that the bundle of rights we have fought for through the 5th and 14th Amendments to the U.S. Constitution were never intended by the “founders” to be applied to Native Americans?"[6] The Smithsonian Institution's National Museum of the American Indian invited Echo-Hawk to participate in a symposium in part due to the impact of the book.[7]

References

  1. ^ a b Tsosie, Rebecca (Spring 2012). "Review Essay: In the Courts of the Conqueror: the 10 worst Indian law Cases ever decided". Wíčazo Ša Review. 27 (1): 130–36. doi:10.1353/wic.2012.0009. ISSN 0749-6427.
  2. ^ Renaud, Gilles (July 2010). "Review: In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided". Library Journal. 135 (12): 97. ISSN 0363-0277.
  3. ^ Simpson, Michael W. (Winter 2011). "Review: In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided". Tribal College Journal. 23 (2): 57. ISSN 1052-5505.
  4. ^ Newcomb, Steven. "In The Courts of the Conqueror: A Short Review". Indian Country Today. Indian Country Today Media Network. Retrieved 29 August 2013.
  5. ^ Krol, Debra Utacia (8 November 2010). "The dark side of Indian law". High Country News. High Country News. Retrieved 29 August 2013.
  6. ^ Yingst, Robert A. (June 2011). "Review: In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided by Walter R. Echo-Hawk". Wisconsin Lawyer. 84-JUN: 34.
  7. ^ "Fact or Fiction: National Museum of the American Indian Hosts Law Symposium". National Museum of the American Indian. Smithsonian Institution. 21 September 2011. Retrieved 29 August 2013.
This page was last edited on 5 October 2023, at 06:28
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