44 Pages Posted: 2 Apr 2013
Date Written: 2013
This article was part of a symposium entitled "The U.S.-Dakota War of 1862," held at William Mitchell College of Law on October 26, 2012, in the sesquicentennial of the War of 1862.
The author begins by describinmg how, the aftermath of the Dakota-U.S. War of 1862, a demand arose in Minnesota for "extermination or removal" of all Dakota people from the state. Congress responded by passing an Act that unilaterally "abrogated and annulled" all of the treaties with the four bands of Indigenous people known as the Dakota Oyate (Nation) and included provisions that purported to seize the Dakota homeland and led to forced removal of all Dakota people.
In this article, the author reviews texts of the abrogation, forfeiture, and removal clauses and searches for the underlying legal foundation, if any, of the Congress to exercise such power.
The discussion that follows is organized around three tasks: Part I describes the larger context of history that frames these congressional acts by focusing on the long road to war and the widespread demand for "extermination or removal" of the Dakota from Minnesota that erupted in the immediate postwar context that prompted these congressional acts; Part II examines the texts of these congressional acts with a focus on their abrogation, land forfeiture, and forced removal clauses; and Part III addresses the question of what legal authority might be offered to justify these congressional acts. Three sources of law are considered: the International Law of Treaties; the U.S. Constitution; and U.S. Supreme Court precedent on the plenary power of Congress over Indian affairs. Special attention is given to the claim that these acts, as an expression of a plenary power of Congress over Indian affairs, are rooted in the Doctrine of Christian Discovery.
The author argues that the Doctrine of Christian Discovery, as the ultimate justification for this Congressional action, is both legally and theologically without foundation and therefore the action of Congress is devoid of any legal or moral grounding. The article closes with a conclusion that sets out the implications of the foregoing analysis for the next steps that might be taken to heal the trauma of America's past and write a new chapter in federal Indian law and policy for the twenty-first century.
Keywords: Dakota, Indian, War of 1862, extermination, abrogation act, removal act, forfeiture clause, treaty, treaties, domestic American law, Doctrine of Christian Discovery, Minnesota, MN, Dakota Oyate, Chief Justice Marshall, Ojibwe, Henry Sibley, Alexander Ramsey, Dakota Removal Act
JEL Classification: K00, K4, K11
Suggested Citation: Suggested Citation
Vogel, Howard J., Rethinking the Effect of the Abrogation of the Dakota Treaties and the Authority for the Removal of the Dakota People from Their Homeland (2013). William Mitchell Law Review, Vol. 39, No. 2, p. 538, 2013. Available at SSRN: https://ssrn.com/abstract=2229314