Michael,
I take some issue with Sandefur:
And in a theoretical sense, it's certainly true that a society that respects no rights cannot demand respect for its rights. The problem is that this was not the case ...
That's an unsupported claim. There is evidence that the Cherokee in Georgia were engaged in the civilization process, but it is an open question whether they actually respected individual rights -- due to them still having much tribalism and mysticism. I have yet to see or hear of a Cherokee law regarding individual property rights, for instance.
To their credit In the Supreme Court case, Cherokee Nation v. Georgia, the Cherokee plaintiffs argued that if they were removed from Georgia to the west (of the Mississippi river?), then other tribes would kill them, because that's just what American Indian tribes did -- they brutally and mercilessly exterminated each other:
The place to which they removed under this last treaty is said to be exposed to incursions of hostile Indians, and that they are
engaged in constant scenes of killing and scalping, and have to wage a war of extermination with more powerful tribes, before whom they will ultimately fall.
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0030_0001_ZS.html
So, the Cherokee in Georgia were scared to move west, because they had heard about the "hostile Indians" there. This doesn't prove that they weren't, themselves, hostile (or rights-violating), it just proves that they did not want to leave an area that was safer (because it was more civilized).
Let me try a hypothetical. Let's say, as a thought experiment, let's say that the Cherokee in Georgia had a law that said: "If you disrespect an elder once, you get tortured, and if you do it again, you get hanged." Let's say that they had this law, this rights-violating law. Now, assuming that they had this law, what moral ground would they be on in order to argue against coming under the potentially more-civilized laws of Georgia?
And if they had laws like that, then wouldn't it be moral to deny or disparage their tribal sovereignty?
Ed
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