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The Legal Construction of Indian Country

ENGL 771.401
T 4:50-6:50

This is an interdisciplinary course open to both students in the Law School and the Graduate School of Arts and Sciences. While its focus is the historic development of federal Indian law, it will address fundamental theoretical issues such as the cultural limits of Western law, the situation of indigenous peoples in a postcolonial context, and the critical relationship between law and literature. In its first half the course will present an overview of the history and theory of federal Indian law, examining its foundation in the Constitution, and in three historic cases of the Marshall Court: Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832). We will situate these legal beginnings in their proper historical field, which is constituted first of all by the European conquest of the Americas and subsequently by the extension of this conquest through U.S. imperialism in Native America. Within this historical field, which extends into the present moment, we will examine the establishment of the U.S. colonial apparatus that creates "Indian Country," beginning with the creation of the Bureau of Indian Affairs in 1824, and the Indian removal policy of the federal government, which has its origins in the presidential administration of Thomas Jefferson. Along with this historical material, we will read both literary and ethnographic texts that will help us understand fundamental cultural conflicts between Indians and Europeans, between kinship-based societies sharing communal land, and a society based in the twin structures of individualism and property. In the second half of the course, we will study a paradigmatic case in federal Indian law: the so-called Navajo-Hopi Land Dispute, which beginning in 1882 is still ongoing. In addition to legal cases listed above, Felix Cohen's formative Handbook of Federal Indian Law (1941) and Getches, Williams, and Wilkinson Cases and Materials on Federal Indian Law (4th ed.), will be the central texts of the course. The requirements for the course will consist of one class presentation by each seminar participant, as well as a final paper of 20-25 pages in length.

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