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Canons of Conquest



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18 SINGER MACRO DOC 4 24 2003 6 32 PM Canons of Conquest The Supreme Court s Attack on Tribal Sovereignty Joseph William Singer We desire you to consider brothers that our only demand is the peaceable possession of a small part of our once great country Look back and review the lands from whence we have been driven to this spot We can retreat no farther 1 When the Supreme Court decided Bush v Gore2 on December 12 2000 the entire country paid attention The Court not only decided the presidential election but did so in a 5 4 vote that split the Justices along ideological lines creating the appearance if not the reality of raw political partisanship The decision was especially shocking to most lawyers and law professors because the five Justices in the majority acted contrary to their own jurisprudential philosophies and in a manner that was arguably contrary to precedents they themselves had authored The Court had recently proved a strong champion of state sovereignty striking down a number of federal statutes that had purported to regulate state government However in Bush v Gore instead of deferring to the sovereign powers of the State of Florida three of the Justices who joined the Court majority3 would have held possibly for the first time ever that a state supreme court 2003 Joseph William Singer Professor of Law Harvard University Thanks and affection go to Martha Minow Carole Goldberg John LaVelle Nell Newton Judy Royster Rennard Strickland A version of this article was delivered as the Clason Lecture at Western New England School of Law in January 2002 and benefited from comments by the faculty at WNEC It also was presented in summary form at the Symposium at New England School of Law held on October 25 2002 on The Role of Jurisdiction in the Quest for Sovereignty hosted by the New England Law Review 1 HELEN HUNT JACKSON A CENTURY OF DISHONOR A SKETCH OF THE UNITED STATES GOVERNMENT S DEALINGS WITH SOME OF THE INDIAN TRIBES 42 43 1881 reprinted in GREAT



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