• Athena
    1.8k
    James Riley said something very interesting in the thread about "playing". It is my fault things got off-topic in that thread and I want to know what people are thinking of these different topics. I see a relationship between women's liberation, and Native Americans, and people of color, also gaining much more political power. I see us coming into a completely new consciousness that demands our attention. Regarding Native Americans, what is "specific performance" in equity? Is this a consideration of Irishman and others who lost control of their homeland? Do we see history and morality differently today?

    If it's in a treaty, then don't fall for the "fair compensation" BS. Just give them back the land. It's called "specific performance" in equity. If we want to give money to those who "improved" the land, then pay them, as they pack their trash and get the hell out. — James Riley
  • James Riley
    2.7k


    As I remember it, "specific performance" is a common law legal principle in equity. It requires that you have parties. One party could be an Indian Tribe. The other party could be the Federal Government. But the court is enforcing an agreement. So there had to have been an agreement (offer, acceptance, consideration). The parties must be subject to the jurisdiction of the court. The court figures out what the agreement was, and then enforces the agreement. The court can award damages (i.e. money, like the U.S. Supreme Court did in a case the United States v. Sioux Nation of Indians). But the Indians rejected that money. They want the land, as specified (specific) in the treaty. Perform ; do what you said you would do.

    The U.S. has a long history of 1. Screwing Indians; and 2. Buying it's way out of it, when it's own courts find it has screwed the Indians.

    By going to court in the first place, Indians have subjected (subordinated) themselves to the jurisdiction of the courts of the other party. That is questionable in the first place. Should not an international court, sitting as an independent arbiter, hear the case, under international law, between sovereign nations? I say yes, but, like Indians, I don't matter. It's all a charade designed to fuck Indians.

    If one understands war, and might-makes-right, then it is easier to live with. So, the U.S. won, Indians lost, and they are lucky to get what the U.S. courts give them. But there is a problem: Forget the Indians for a minute. The U.S.'s own Constitution provides that treaties shall be the supreme law of the land. So the U.S. is violating it's own laws when it fails to abide it's own word. The U.S. is not only fucking the Indians then; it is fucking it's own citizens and itself.

    The U.S. might argue "pacta sunt servanda, rebus sic stantibus" which is an international law principle that "treaties shall be obeyed; so long as things remain the same." The U.S. would argue that things have changed. But there is also a principle that a party to an agreement can't purposefully change things to get out of an obligation. If the Indians, or time, or a third party had caused the change, maybe. But the U.S. damned the rivers, stopped the grass from growing, blah blah blah. So it can't, in equity or law, get out of it's obligations.

    Thus, if money is to be paid, pay it as a Fifth Amendment "takings" to all the trespassers who have made a living on, and invested in the Indian lands, and then kick them out and let them start over somewhere else. In other words, don't try to buy your way out by giving chump change to the Indians. Buy your way out by giving chump change to your citizen trespassers who relied upon your failure to keep them out, per the treaty. It's a U.S. thing. Not an Indian thing. If the U.S. stood up, it could then look at Israel with cleaner hands.
  • T Clark
    7.2k


    Back in 2020, the Supreme Court ruled that about half of Oklahoma was on land that belongs to the Muscogee tribe. Have you heard anything about how that is working out?
  • James Riley
    2.7k
    Back in 2020, the Supreme Court ruled that about half of Oklahoma was on land that belongs to the Muscogee tribe. Have you heard anything about how that is working out?T Clark

    I have not. All my understanding is very dated. A lot of Indians had no treaty or, it could be argued, they breached first. But there is a lot out there that is all on us.
  • T Clark
    7.2k
    I have not. All my understanding is very dated. A lot of Indians had no treaty or, it could be argued, they breached first. But there is a lot out there that is all on us.James Riley

    I agree with much of what you've written, although the idea of giving the Indians back what was, arguably is, theirs on a one to one basis will never happen. That's why I was shocked by the Oklahoma ruling. It seemed so radical, far-reaching.
  • James Riley
    2.7k
    That's why I was shocked by the Oklahoma ruling. It seemed so radical, far-reaching.T Clark

    Did the court rule they could have the land, or just some money? The former would be radical and far-reaching. The latter would be more of the same. Beads and trinkets. Guilt loves money. It's so easy because you don't have to do the right thing while pretending you have. It's a capitalist thing.
  • T Clark
    7.2k
    Did the court rule they could have the land, or just some money? The former would be radical and far-reaching. The latter would be more of the same. Beads and trinkets. Guilt loves money. It's so easy because you don't have to do the right thing while pretending you have. It's a capitalist thing.James Riley

    As I remember, the ruling raised questions about who would have legal jurisdiction over the land for the purposes of civil and criminal law. That seems like much more than allowing them to open a casino. That's why I asked if you'd heard anything more. I haven't.
  • James Riley
    2.7k
    legal jurisdiction over the land for the purposes of civil and criminal law.T Clark

    It's beyond me. On the issue of jurisdiction, I've never been up on that. It does seem convoluted, from what I've seen. Indians on res, but still have U.S. Bill of Rights? Indians off res subject to state/local law. Whites on res are not subject to res jurisdiction. Hunting and fishing treaty rights off res. It's all a mess. But I do remember a prof talking about "quasi-sovereignty," so I asked "Is that like limited infinity?"
  • Ciceronianus
    2k
    It requires that you have parties.James Riley

    If only it did. Oh, you meant the other kind of parties.



    Specific performance is an equitable remedy which may be applied in contract law. For example, X agrees to sell property to Y. X fails to convey the property to Y, but not because of any default by Y. A court may compel X to convey the property to Y. Generally, it's a remedy which isn't ordered where payment of money damages provides adequate relief.

    From a lawyer's standpoint (well, this lawyer's standpoint) one of the problems with equitable relief is that the court has a great deal of discretion in fashioning a remedy. It's very difficult to successfully appeal a decision made by a court sitting in equity, because the appellate court will defer to the lower court's decision. It's necessary to show an abuse of discretion by lower court, which isn't easy to do.

    I don't know whether specific performance may be applied in the case of treaties. Sometimes it won't even in contracts, especially where the remedies available to the parties is specified, and specific performance isn't one of them. My guess would be that the treaties made with native americans limited the remedies available, but I haven't read any of them.
  • James Riley
    2.7k
    My guess would be that the treaties made with native americans limited the remedies available, but I haven't read any of them.Ciceronianus

    I don't remember any remedies being specified, although they may have been. In international law, it is generally assumed that a breach would obviate obligations. So, I suppose the Sioux could fire up the war parties again. After all, it was the U.S. that sued for peace when it was getting it's ass kicked. But as opined above, this, to me, is more about us and our honor and our word, than it is about remedies for the Indian.

    I can still love the U.S. while admitting just how flawed she is. Amends would be nationally cathartic. But that's just me.
  • Athena
    1.8k
    If only it did. Oh, you meant the other kind of parties.Ciceronianus

    :rofl: I love your reply to James.

    I just want everyone to know I have not forgotten this thread. I just ran out of energy before I got to it, but I got my paperwork turned in on time, so my day hasn't been a total loss. I promise I will be here first thing in the morning when my batteries are recharged.
  • Athena
    1.8k
    As I remember it, "specific performance" is a common law legal principle in equity. It requires that you have parties. One party could be an Indian Tribe. The other party could be the Federal Government. But the court is enforcing an agreement. So there had to have been an agreement (offer, acceptance, consideration). The parties must be subject to the jurisdiction of the court. The court figures out what the agreement was, and then enforces the agreement. The court can award damages (i.e. money, like the U.S. Supreme Court did in a case the United States v. Sioux Nation of Indians). But the Indians rejected that money. They want the land, as specified (specific) in the treaty. Perform; do what you said you would do.James Riley

    Oh my goodness, I think I actually understand what you said. Oregon tribes had a hard time because the treaties they signed were not processed? This was in a show last night. Something like they were not ratified? And White people were encouraged to homestead the land, and they got legal protection, not the tribes. Then the government just decided to declare the tribes no longer existed leaving them to fight for acknowledgement of their existence. Schools for Native Americans were used to make the tribes none existent. The children were sent to a school very far away and prevented from speaking their language of maintaining any traditions. Many children died and an effort has been made to return them to their tribal land.

    The fight is not exactly a fight for equality because it is not about being as the Europeans who invaded their land. So now I must ask what does the word equity mean? Of here is a philosophical consideration what are inalienable rights? Do they apply to all humans?

    The U.S. has a long history of 1. Screwing Indians; and 2. Buying it's way out of it, when it's own courts find it has screwed the Indians.

    By going to court in the first place, Indians have subjected (subordinated) themselves to the jurisdiction of the courts of the other party. That is questionable in the first place. Should not an international court, sitting as an independent arbiter, hear the case, under international law, between sovereign nations? I say yes, but, like Indians, I don't matter. It's all a charade designed to fuck Indians.

    Yes, but isn't this the conquers privilege? Look at Israel and the US support of it. :rage: This thread goes with the changing consciousness thread I started because I think in general our consciences is changing. At least the public broadcasting shows I watch are coming from a point of view that what the invading Europeans have done is immoral by today's standards.

    If one understands war, and might-makes-right, then it is easier to live with. So, the U.S. won, Indians lost, and they are lucky to get what the U.S. courts give them. But there is a problem: Forget the Indians for a minute. The U.S.'s own Constitution provides that treaties shall be the supreme law of the land. So the U.S. is violating it's own laws when it fails to abide it's own word. The U.S. is not only fucking the Indians then; it is fucking it's own citizens and itself.

    Ouch! I think we have an international problem, and what is being said here goes with a changing consciousness. The whole world is judging us and some of those folks have serious weapons. We have lost the assurance of being the winner of all wars. This forces a re-evaluation of ourselves and effectively we are a nation in serious need of psychoanalysis.

    The U.S. might argue "pacta sunt servanda, rebus sic stantibus" which is an international law principle that "treaties shall be obeyed; so long as things remain the same." The U.S. would argue that things have changed. But there is also a principle that a party to an agreement can't purposefully change things to get out of an obligation. If the Indians, or time, or a third party had caused the change, maybe. But the U.S. damned the rivers, stopped the grass from growing, blah blah blah. So it can't, in equity or law, get out of it's obligations.

    I am loving your explanations, and what of this...

    Who are the Uyghurs and why is China being accused ... - BBChttps://www.bbc.com › world-asia-china-22278037
    Jun 21, 2021 — China has been accused by the US of genocide and crimes against humanity against the Muslim minority group.
    — BBC
    Internationally we don't have a leg to stand on because we have not respected our treaties with Native Americans, and what we have to done to people of color is totally unacceptable by today's standards, and what is new, is we are becoming aware of how the rest of the world sees us, and how our own history destroys our arguments with China and others. Trump followers do not appear sensitive to this international problem, but can they succeed in halting the change of consciousness that is occurring? Is that even desirable?

    Thus, if money is to be paid, pay it as a Fifth Amendment "takings" to all the trespassers who have made a living on, and invested in the Indian lands, and then kick them out and let them start over somewhere else. In other words, don't try to buy your way out by giving chump change to the Indians. Buy your way out by giving chump change to your citizen trespassers who relied upon your failure to keep them out, per the treaty. It's a U.S. thing. Not an Indian thing. If the U.S. stood up, it could then look at Israel with cleaner hands.
    3 days ago
    T Clark
    7.1k
    ↪James Riley

    On the bright side, our fossil fuel economy is not sustainable. I thought when we began fracking for fuel our troubles were at least temporarily over, and I am horrified by what is happening to gas prices and that we are still dependent on foreign oil. I thought this day was far in the future, along with the global warming problems that are already intolerable. How intelligent are we if we do not question if we need to live together differently and build our happiness of something besides material values? And so I have the other thread questioning our changing consciousness and asking questions of men that make them uncomfortable. Am I a better human being if I have a high-powered career than if I am just a domestic woman, and do nothing beyond caring for my family and volunteering in my community? I think it might be easier for women to feel unity with the women of the world than it is for men to feel unity with the men of the world?
  • Athena
    1.8k
    Back in 2020, the Supreme Court ruled that about half of Oklahoma was on land that belongs to the Muscogee tribe. Have you heard anything about how that is working out?T Clark

    Oh yeah! Our history is a huge international problem! I have heard about the Oklahoma land dispute and your comment has heightened my awareness of the complexity of the problem. Some native Americans were more settled than others. I can see how a migratory tribe would have a weaker claim to the land. If they were not present to defend their land, then how can they claim it? I am not saying taking control of their territory is justified. I am just acknowledging the weakness of their case. And we know many times the Native Americans were present to defend their territory and it was taken from them anyway. Now how to we stand up to the rest of the world and tell them they can not do what we did?
  • Athena
    1.8k
    As I remember, the ruling raised questions about who would have legal jurisdiction over the land for the purposes of civil and criminal law. That seems like much more than allowing them to open a casino. That's why I asked if you'd heard anything more. I haven't.T Clark

    The ruling will have significant legal implications for eastern Oklahoma. Much of Tulsa, the state's second-largest city, is located on Muscogee (Creek) land. The Muscogee (Creek) Nation cheered the court's decision.

    "The Supreme Court today kept the United States' sacred promise to the Muscogee (Creek) Nation of a protected reservation," the tribe said in a statement. "Today's decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries."
    https://www.npr.org/2020/07/09/889562040/supreme-court-rules-that-about-half-of-oklahoma-is-indian-land
    — LAUREL WAMSLEY

    This has far-reaching legal consequences.

    The Supreme Court ruled Thursday that about half of the land in Oklahoma is within a Native American reservation, a decision that will have major consequences for both past and future criminal and civil cases. — LAUREL WAMSLEY

    And back to the Palestinians in Israel and the Uyghurs in China, what are unalienable rights and justice and nature's laws of cause and effect? What are the boundaries of doing unto others as you would have others do to you? Internationally in a world with hypersonic missiles?
  • James Riley
    2.7k
    Yes, but isn't this the conquers privilege?Athena

    It is, but we should be honest about it. Honest with ourselves. You can know what the U.S. has done and still love her. But there are lessons to be learned.

    Those who do not ascribe to the notion of "conquerors privilege" and "total war" must be prepared to live with endless simmering hatred and low-intensity war. Had the U.S. done to the Germans, the Japanese, the Vietnamese and the Afghans what we did to the Indians, then there would be no Confederate Statues, Flags and whatnot. There would be no NeoNazis. Vietnam and Afghanistan would be the 51st and 52nd states. Germany would have been given to the Jews, the south would have been given to the former slaves, enemy children separated and re-educated, enemy women and old men made dependent wards of the government on distant reservations, mixed in with people they don't know, culture and religion denied, and the enemy boys and men of fighting age would have been forced into indentured servitude for Jews and blacks, or summarily executed.

    And the world would hate us but we wouldn't care.

    But when you choose to use Special Operations forces, precision-guided weapons, declare "police actions" and avoid Constitutional Congressional Declarations of War, using other tactics to avoid collateral damage and make the home front feel more self-righteous about a war, then you get the ongoing issues we currently have. And we leave "innocent" wives and children and old people to provide aid and comfort to the combatants. And the world still hates us.

    The alternative is to do nothing. In the case of Vietnam, that probably would have been a good idea. Socialism should be allowed to experiment with many different manifestations. With Afghanistan, we would have to live with the fact that women and boys will be treated like shit. We will have to be great champions of human rights for us, while turning a blind eye to the rest of the world.

    We could try to ostracize and cancel and embargo, but then what of Saudi Arabia and the tin horn pieces of shit in Central and South America?

    To be consistent, we would have to take money out of the equation, and quit letting it rule our domestic and foreign policy. We would actually have to live up to our own ideals, as set forth in or organic documents, and we can't have that now, can we? I mean, we'd then have to admit how we fucked some Indians, not merely in war, as conquerors, as we did with some tribes, but with violations of our own word, our own laws, and our own Constitution.

    The U.S. should do some soul-searching, but that would require education. It's much easier to tell ourselves myths about how great we are. Hell, just put up a statute of a fucking racist traitor in the town square and talk about our proud heritage as we waive an enemy flag. Why teach our kids history when Billy Bob and Cletus can point to their daddy with pride?

    Welcome to America. It's hell being #1. But it's better than being #2. Maybe we are getting tired. Maybe China can be the new #1, but without even the pretense of our organic documents.

    End morning rant.
  • Athena
    1.8k
    Specific performance is an equitable remedy which may be applied in contract law. For example, X agrees to sell property to Y. X fails to convey the property to Y, but not because of any default by Y. A court may compel X to convey the property to Y. Generally, it's a remedy which isn't ordered where payment of money damages provides adequate relief.

    From a lawyer's standpoint (well, this lawyer's standpoint) one of the problems with equitable relief is that the court has a great deal of discretion in fashioning a remedy. It's very difficult to successfully appeal a decision made by a court sitting in equity, because the appellate court will defer to the lower court's decision. It's necessary to show an abuse of discretion by lower court, which isn't easy to do.

    I don't know whether specific performance may be applied in the case of treaties. Sometimes it won't even in contracts, especially where the remedies available to the parties is specified, and specific performance isn't one of them. My guess would be that the treaties made with native americans limited the remedies available, but I haven't read any of them.
    Ciceronianus

    Thank you. What comes to mind is justice is not just property decisions. We have denied people their inalienable rights. I think a problem emerges when people believe they are superior to others and a God who has favorite people blesses them and wills them to take all they can get. The only benefit I can see in Judaism is this God gave them a relatively small claim to land. Where as Christians have no limits on what they believe they can take or at least control, in the name of God. My thinking on this may be totally inappropriate, but would you like to comment about how Christianity influences our understanding of justice and how increased secular thinking is changing the consciousness of justice? Perhaps how science and international points of view are changing our understanding of justice and what is equitable.

    :smile: What do we need to know for "right-thinking"?
  • Athena
    1.8k
    We would actually have to live up to our own ideals,James Riley

    It should be obvious I love the Greek and Roman classics, but I am not as well informed as I would like to be. It is my understanding that the Celts got along fine with the Greeks, but not with the Romans, who not only enslaved others but also themselves. Can we see this conflict between the invading, Christian conquers and the indigenous spiritual people?

    Some Christians realize Christianity was derailed by Rome. I wish we worked with a better understanding of that line of thinking? How far can we go with a concept of, "specific performance" in equity when the foundation for all thinking and understanding of truth, is the Bible?

    The meaning of equitable is just or fair : dealing fairly and equally with everyone. — Webster
    This gets all tangled up with notions of "us" and "them" but with the Greeks comes the idea of universals and then the Romans give us law. But a legal effort of Rome was to take what was common practice in different city/states to decide cases involving people from the different city/states. We did not do that with Native Americans. Something mean happened when our linage dropped the many gods and in favor of the one God. Excuse me, but isn't that the end of equity?
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