§3.2 NATIVE AMERICANS
Building on models already tested by the Spanish, the French, and the British,America advanced its takeover of the lands held by Native Americans
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through resort totreaties — easily made and as easily abandoned — open warfare waged with, first,superior weapons and, later, with overwhelming numbers, and, ultimately, throughgenocide.
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Writing in the mid-1830s, Alexis de Tocqueville contrasted the outright policies of the Spanish, who tracked and exterminated the Indians as they would wild beasts, with those of the Americans, who accomplished the same end “with singular felicity, tranquilly; legally, philanthropically, without shedding blood, and withoutviolating a single great principle of morality in the eyes of the world. It is impossible todestroy men with more respect for the laws of humanity.”
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De Tocqueville’s observationis obviously tongue-in-cheek, because there was, in fact, great bloodshed and greatsavagery directed at those deemed to be savages. His description does encompass howthe law was manipulated to justify whatever was necessary to get rid of the Indians, who
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There is much discussion about what term should be used to refer to Native American peoples. Many people, including people who are themselves Native American, choose to use the term “Indian” or “American Indian” and see such use as a reclamation of an oppressive colonial nomenclature. Others prefer “Native American” or “First American.” This author, as a non-Native American, has chosen to use the term“Native American” as it reflects the fact that Native peoples are indigenous to America and moves awayfrom the often stereotypical term “Indian.” When other scholars or sources are cited, the terms they use arenot altered, which accounts for the variation throughout the chapter.
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The traditional myths about the winning of the West have been deromanticized. The virtual eradication of the Western Indian is painfully detailed, for example, in Dee Brown, Bury My Heart at Wounded Knee(1970). Indian politics is surveyed with insight, wit, and militancy in Vine Deloria, Custer Died for Your Sins (1969).
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Cited in Rennard Strickland, Genocide-At-Law: An Historic and Contemporary View of the NativeAmerican Experience, 34 U. Kans. L. Rev. 713, 718 (1985-1986). A more recent commentator observed:“[H]eavy reliance on law is characteristic of many colonial societies that are typified by . . . extremeimbalances of power. The use of law by colonizers to execute and rationalize oppressive policies, notablythe acquisition of native lands for European settlement, is poorly explained as an effort to gain the consentof thoroughly dominated indigenous populations. Rather, . . . the use of law under such circumstancesreflects the needs of dominant colonial groups to maintain internal cohesion and morale, and, to a lesser extent, to gain international approval for their policies.” George E. Bisharat, Land, Law, and Legitimacy inIsrael and the Occupied Territories, 43 Am. U. L.Rev. 467, 470-471 (1994).
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