Indigenous Law
Charters
Organization of American States
Inter American
1968 Civil Right Act
H.CON.RES.331
Law in a nutshell
Posted: Monday| April 9 2018 | Administration
Law is not tidy. It is not contained by the boundaries of modern states nor generated solely by the work of public officials … . Nor is law lonely. It is frequently found overlapping or interacting with other instances of law. Yet somehow, despite this messiness and multiplicity, law still can, or at least claims to be able to, create obligations … . Despite its plurality, law still has or at least claims some kind of authority.
The only alternative to lawful societies is unlawful societies. Indigenous societies were lawful. It is time for the conversations to move from the why of Indigenous law (whether Indigenous societies had law and why it matters) to the how of Indigenous law so that the work of law may done by and within Indigenous communities, between Indigenous communities, and between Indigenous societies and the state (and settler society).
Through the ages, the question of ‘what is law?’ has preoccupied people from all walks of life – legal scholars, activists, legal practitioners, community members, students, politicians, and government officials. Law libraries are full of law texts of every description and the judiciary generates seemingly endless volumes of legal decisions touching every facet of life and death. We all hold expectations for what law is and what it should do in our world and beyond. These ideas about law can be positive or negative, prescriptive or normative, and they reflect a range of political perspectives. For example, one school of thought, that of law and economics, takes the position that the role of law and its institutions should be minimized to allow the economic market to make the necessary determinations about social ordering. In contrast, some newer scholarship seeks to decent-re the market as sole determinant and factor in unaccounted environmental costs and collateral ecological damage. In the end though, law is a human endeavor. It is an active collaborative and public process, and is never insulated from the larger social and political forces around it. Rather, law can be understood as being formed by and forming those constant social, economic, and political dynamics. And, since law is fundamentally collaborative, it operates through public legal institutions which for Canada emanates from a state center (vertical and from the top down) operating through the judiciary, law enforcement, and government. These are some of the conditions that make Canadian law and its legalities possible.
The ground of Indigenous law is uneven—Indigenous law exists, it has not gone anywhere—and we saw this, but there are also serious gaps where some Indigenous law have been undermined, distorted, or lost. Given this, simply arguing for the recognition of Indigenous law is inadequate because we cannot just assume that there are completeare the intellectual processes in each Indigenous society that historically enabled and intact legal orders that can spring to life through recognition. This means that engagement with Indigenous law must move to thoughtful rebuilding, and this generates two questions: (1) What are the terms for this thoughtful rebuilding process with communities? and (2) What people to deal with and account for change?
Indigenous peoples were and are reasonable and reasoning peoples, and law is one of the ways we govern ourselves. It is law that enables large groups of people to collectively manage themselves “against a backdrop of deep-seated normative disagreement” and to fashion “collective positions out of the welter of disagreement”. Law is an intellectual process, not a thing, and it is something that people actually do. Indigenous peoples apply law to manage all aspects of political, economic, and social life including harvesting fish and game, accessing and distributing resources, managing lands and waters. Indigenous law is not perfect nor does it have to be, but it works well enough and has endured through time. No system of law ever lives up to all of its aspirations, but a people’s collective aspirations provide direction, order, standards and ethics, and the power of hope. As with all law, Indigenous law contains thinking processes and intellectual resources, and it changes to live in each generation.
Northwest Ordinance
Posted: Monday| April 9 2018 | Administration
Need for the Northwest Ordinance
-- The Treaty of Paris, September 3, 1783, negotiated by John Jay, Benjamin Franklin, and others, left America with borders from northern Florida to Canada from the Atlantic to the Pacific. The residents needed representation and protection.
-- "The Northwest Ordinance (1787) was the most important piece of legislation enacted by Congress under the Articles of Confederation.
Some historians have claimed that the principles established in the Northwest Ordinance are so important that they actually formed part....
Ratified: March 1, 1781 Created: November 15, 1777
A SUMMARY OF THE
Northwest Ordinance; July 13, 1787; An Ordinance for the Government of the
Territory of theUnited States North-West of the River Ohio
..........of the Constitution. Before the Constitution, the Northwest Ordinance promised a republican form of government for the territories. it guaranteed that residents in the territories would not be treated as second-class citizens, and they would enter under the same terms as those states that were already part of the union. The Northwest Ordinance also ensured the equality of rights of Citizens of the new states with the rights of Citizens of the states that had fought the Revolution." (from "Implementation of theNorthwest Ordinance," J.B. Geiger, Dec. 18, 2016)-- "
... once the Constitution was approved, in 1789 the United States Congress made minor. changes, such that the President, with the advice and consent of the United States Senate, and the power to appoint the Governor and officers of the territory instead of Congress. In addition, the power of removal was given exclusively to the office of the President. On August 7, 1789, President George Washington signed the Northwest Ordinance of 1789 into law." (from "Implementation of the Northwest Ordinance," J.B. Geiger, Dec. 18, 2016)
--"The Supreme Court recognized the authority of the Northwest Ordinance of 1789 as constitutional in Strader v. Graham, 51 U.S. 82, 96, 97 (1851)." (from "Implementation of the Northwest Ordinance," J.B. Geiger, Dec. 18, 2016)
-- This is probably why Lincoln patterned his 10% Plan to bring the rebellious Confederate states back into the Republic after the Northwest Ordinance. He had a constitutional de jure One Supreme Court ruling that its implementation was constitutional.
-- "Whereas, on August the 7th, 1789 the first Congress of the United States under the Constitution of the United States of America transferred the administration of An Ordinance for the Government of the Territory of the United States North-West of the River Ohio Ordinance (Northwest Ordinance), when it was codified into law by I Statute fifty, to the office of the President. In the case of appointments, the authority of the President is tempered with the advice and consent of the Senate ... ."(from"Implementation of the Northwest Ordinance," J.B. Geiger, Dec. 18, 2016)
Summary of the Sections
-- Section 1: "Be it ordained by the United States in Congress assembled, That the said territory, for the purposes of temporary government, be one district, subject, however, to be divided into two districts, as future circumstances may, in the opinion of Congress, make it expedient."
-- Section 2: Covers the entire concept of a just division of estates and inheritances, the validity and legitimacy of authentic wills, and protection of fair and lawful transfer of property among people.
-- Section 3: "Congress shall appoint a governor" who must own 1,000 or more acres of land. The prevailing sentiment is that if one doesn't have enough interest in the country to invest in it by owning property, he is not fit for leadership. Only property owners can hold office.
-- Section 4: The secretary must own at least 500 acres; and three judges are appointed, any two of whom may form a court. Every judge must own at least 500 acres.
-- Section 5: Governors and judges must adopt and publish common laws, and report their operations to the general assembly for review.
-- Section 6: The governor is commander-in-chief of the militia.
-- Section 7: The governor appoints magistrates and civil officers to pass/enforce laws until the general assembly is established.
-- Section 8: Governors establish the differentiation between civil and criminal laws and establish the division of former Indian lands.
-- Section 9: Once a district contains 5,000 free males, they can select representatives - one for every 500 free males until a total of 25 representatives is reached. A representative must own at least 200 acres and be a resident for three years. Electors of representatives must own at least 50 acres and be residents for two years.
-- Section 10: Covers replacement of representatives in case of their death.
-- Section 11: Description of the general assembly and its functions. It must consist of the governor, legislative council, and a house of representatives.
-- Section 12: All officers must take an oath. If there is no oath there is no office.
-- Section 13: States newly formed out of territories enter into the union on equal footing with existing states.
-- Section 14: Perpetual binding consent (the rights enumerated in the following articles cannot be given or negotiated away).
Article 1. Freedom of religion
Article 2. Habeas corpus (you have the body); trial by jury; common law judicial procedures bailable offenses moderate fines; no cruel or unusual punishment; no man deprived of liberty or property but by judgment of peers in a court of law; full compensation for property seized; no law to affect private contracts.
Article 3. " ... Religion, morality, and knowledge being necessary to good government and the happiness of mankind ... "; schools established, education encouraged; Indians and Indian lands to be left undisturbed.
Article 4. Once a state, always a state; no secession (read the text); apportionment tax. The United States can sell whatever property it wished to, without interference from the states. No tax, duty, or license to navigate the rivers.
Article 5. Three to five states may be formed in the Northwest Ordinance territories; they are states once they are inhabited by 60,000 free people; and their delegates enter Congress on an equal footing with those of other states. The new states must have a republican law form.
Article 6. No slavery or involuntary servitude in the territories, but slaves escaping into the territories must be returned.