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Stamford, Matthew Charles (2012)
Languages: English
Types: Doctoral thesis
Subjects: E0075, KE, KF
This thesis will be a historical and comparative treatment of the way law has been applied in both an assimilative and proscriptive manner to destroy Indian religions in the United States and Canada. By producing the first such comparison, it is hoped that the emphasis on different outcomes may promote the cross-border adoption of alternative legal strategies, and ultimately provide something that may have potential as advocacy.\ud The Nineteenth Century saw attempts by the North American governments, often motivated by revulsion, to homogenise their native populations with illegitimate, often illegal and sometimes un-constitutional laws, aimed at the suppression of their religions. In the Twentieth Century there was less overt proscription but rather an acquisitive attitude to native cultural and sacred artefacts which continues to have a destructive impact on their religious practices. Although there have been sporadic attempts to reverse this treatment by repatriating some of these objects, such gestures have come at little governmental cost. It is the continuing restrictions on Indian prayer at sacred sites, often motivated by opposing commercial interests, which reveal the true extent of the forfeit the governments are prepared to pay.\ud An essential part of this study will be an investigation into how international legal doctrines that were ultimately derived from Christianity were introduced into North America to deprive the indigenous peoples of their legal rights. International Law on indigenous peoples will then be re-examined in the present era for doctrines that can be re-incorporated in order to reverse this colonisation. The seminal United Nations Declaration on Indigenous Peoples (2007), together with other more substantive and binding International Law, will be critically assessed for their potential to bolster domestic law and its ambivalent attitude to Indian religious freedom.
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    • The Opinion
    • Marshall's Attempts at Containment The Consequences 10.2.2 Case Law Lyng Post Lyng Case Law 10.2.3 Executive Accommodation Executive Order 13007 Case Law on Executive Accommodation 10.2.4 Culture or Religion 10.2.5 The Religious Land Use and Institutionalized Persons Act 2000 10.2.6 Establishing a Property Right and Adverse Possession 10.2.7 Historic Preservation and Environmental Legislation 10.2.8 Treaty Rights 10.2.9 Congressional Land Grants 10.2.10 A Sacred Site Statute 10.2.11 Summary
    • 10.3. Canada 10.3.1 Introduction 10.3.2 Interlocutory Injunctions 10.3.3 Judicial Review and the Duty to Consult 10.3.4 Section 35 and Section 2(a) of the Constitution Act 1982 10.3.5 Heritage and Environmental Legislation 10.3.6 Treaty Rights 10.3.7 Summary
    • 10.4 Conclusion
    • Chapter Eleven: International Law and Indigenous Peoples 11.1 Introduction
    • 11.2 The International Labour Organization Conventions 107 and 169 11.3 The International Covenant on Civil and Political Rights (1966) 11.4 The Inter-American System of Human Rights 11.4.1 The Inter-American Commission 11.4.2 The Proposed American Declaration on the Rights of Indigenous Peoples
    • 11.5 The International Convention on the Elimination of Racial Discrimination 1965
    • 11.6 United Nations Declaration on the Rights of Indigenous Peoples (2007) 11.6.1 Provisions 11.6.2 Influence of the Declaration 11.6.3 The Declaration as Customary International Law 11.7 Conclusion
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