一个案子， Worcester v. Gerogia ，我指出其 holding 是【 印第安人有一定的自主权、不容州政府侵犯。。。 这个案子的更为广泛的holding是其关于印第安部落自主权不容州侵犯及其与联邦的关系的法律结论。以后乔治亚或者其他州制订新的企图管辖印第安部落的法律，按照这个 holding, 这些新法律也是无效的、违宪的。】我还举了好几个后续案例说明这一点（后续案例引用用 held 一词）。而且根据HOLDING的定义做了分析。 对此，LAO 律师写了一篇长文，说《 揭示岳东晓博士对1832年传道士案论述的谬误（2） 》。LAO说这个案子的 holding是【 传教士案件判决法 (holding): Georgia 要求白人申请在切诺基部落居住执照法律违宪无效。 (“The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.” 】 LAO还称：【 其他和判决和判决法不相关的都是 论证语 (dictum), 没有任何判决执行法律性 , 不构成任何先例法律性，高级法院后来的案例中称这是法官 Marshall 的陈述，或者观点， 包括最著名的 “ 切诺基部落国是个独特的群体，有自己的领地和邦界， 州政府对部落国的法律无法律效力。】 读懂案例，明白哪些是 HOLDING 对于律师来说是最基本的能力。因为 HOLDING 才是有法律效力的。诉讼中如果分不清HOLDING，等于盲人夜行。 但我再怎么说，读者还是疑惑。为此，我昨天给哈佛大学法学院一位教授（他写过关于印第安人的这些案例的评论）发了个EMAIL，特意请教 WORCESTER案的HOLDING是什么。他今天回答到： 翻译如下：其基本的HOLDING是乔治亚的法律不能延伸到切诺基部落国，因为关系是部落-联邦，而不是部落-州。 教授的姓名我就不写了（尚未征求其许可），如果有兴趣的，可以去问问其他法学教授。 下面是若干法院谈到WORCESTER案的HOLDING时的说法： Blatchford v. Native Village of Noatak, 501 US 775 （1991） Illustrative of this principle are our cases holding that the law of the State is generally inapplicable to Native American affairs, absent the consent of Congress. See, e. g., Worcester v. Georgia, 6 Pet. 515 (1832). Chief Justice Marshall explained for the Court in Worcester that a federally recognized tribe quot;is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of can have no force, and which the citizens of have no right to enter, but with the assent of the themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.quot; Id., at 561. United States v. Kagama, 118 US 375（1886） In the case of Worcester v. The State of Georgia, above cited, it was held that, though the Indians had by treaty sold their land within that State, and agreed to remove away, which they had failed to do, the State could not, while they remained on those lands, extend its laws, criminal and civil, over the tribes; that the duty and power to compel their removal was in the United States, and the tribe was under their protection, and could not be subjected to the laws of the State and the process of its courts. In re Colwash, 356 P. 2d 994 - Wash: Supreme Court 1960 I shall not repeat here what I there said concerning theconstitutional basis of that power, or the holding in Worcester v. Georgia (1832), 31 U.S. 515, 8 L.Ed. 483, where Chief Justice Marshall stated the source of that power in two sentences (p. 559): quot;That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians....quot; Oneida Tribe of Indians of Wis. v. State of Wis., 518 F. Supp. 712 In a case holding that the State of Georgia could not enforce its laws on the Cherokee Reservation, which was within the external boundaries of the state, the Supreme Court held: The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force... The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States. Worcester v. State of Georgia, 31 U.S. (6 Pet.) 515, 561, 8 L.Ed. 483 (1832). Nevada v. Hicks, 533 US 353 Our holding in Worcester must be considered in light of the fact that quot; he 1828 treaty with the Cherokee Nation . . . guaranteed the Indians their lands would never be subjected to the jurisdiction of any State or Territory.quot; Organized Village of Kake v. Egan, 369 U. S. 60, 71 (1962); cf. Williams v. Lee, 358 U. S., at 221-222 (comparing Navajo treaty to the Cherokee treaty in Worcester ). http://sct.narf.org/articles/supreme_court_indian_problem_fletcher_2007.pdf The final piece of the Trilogy is Worcester, where Chief Justice Marshall’s opinion garnered a 5-1 majority holding that the laws of the State of Georgia do not extend into Indian Country where they conflict with federal laws or Indian treaties.
标签: 法学
