Jump to content
Capulet

Good Extra Arguments to Bolster "Supreme Court Bad Actor" NEG

Recommended Posts

Okay. So here in my state, there's a team with a nigh-impenetrable AFF through normal means. It's a very solid, very specific case. But it reverses a SCOTUS ruling to achieve its goal: banning corporal punishment in schools.

 

So, my partner and I have compiled the bones of a NEG to attack that, specifically their actor.

 

All we need is something... spicy. A K or something to add on to it. We don't know what, though, and could use some help. Something to do with corporal punishment AFFs maybe, instead of something to do with the SCOTUS, but keeping in mind that we are also banning corporal punishment in schools, just using a different actor?

 

They don't have a very solid definition of "corporal punishment" though, so maybe a card to help with definitional debate? Say it has to focus on race/gender or something? Any help would be appreciated. Thanks for reading!

Edited by Capulet

Share this post


Link to post
Share on other sites

Have you considered just going for states? I'm 99% sure the corporal punishment aff just doesn't have a solid defense of federal action. If you fiat state action it takes out all their "judicial action key" args. 

Share this post


Link to post
Share on other sites

Have you considered just going for states? I'm 99% sure the corporal punishment aff just doesn't have a solid defense of federal action. If you fiat state action it takes out all their "judicial action key" args.

 

We have something like that. I'd just like something unrelated that can hold strong in the face of our SCOTUS-bad argument falling flat. You never know with some judges....

Share this post


Link to post
Share on other sites

I mean there is definitely some theory against SCOTUS Fiat that you could use, but you could also read a K about SCOTUS upholding racist treaties and ruling Native Tribes to be "dependent Nations" lacking sovereignty, thus disempowering natives and upholding white supremacy (sure you could link it out to Cap lol). I took it from a Set Col K but you could easily retag it. It has a lot of good examples of specific rulings that hurt Tribes, though it is kinda over-large IMO, apologies. 

The Federal Government Paternalizes and disempowers Native People, their efforts to include Natives simply result in Assimilation and Destruction

Grande 2004 (Sandy, chair of education department Connecticut College, “Red Pedagogy”, 9/1/04, Rowan and Littlefield Publishers Inc.  Counterpoints, Vol. 356, pp. 31-57)

. In the Cherokee Nation v. Georgia9 the tribe filed a petition with the Supreme Court asking for protection against the vulgar transgressions enacted by the state of Georgia. The question before the Court was whether the Cherokee Nation had the right to sue the state of Georgia in federal court (a right typically reserved for "foreign states"). In his opinion, Justice Marshall determined that the Cherokee did not have the right to sue a state because the status of Indian tribes was neither the same as "a state nor a foreign nation within the meaning of the Constitution" (Deloria and Lytle 1983, 29). They were, rather, "domestic dependent nations" existing "in a state of pupilage" to the United States, their relationship resembling "that of a ward to his guardian." Prygoski (1998, 3) maintains that the Court's characterization of the tribes as "domestic dependent nations" not only established the basis for the "trust" relationship between the United States and Indian tribes but embedded the implication that tribes, as "wards," were "incompetent to handle their own affairs." One year later, in the last case of the Marshall trilogy, the Court addressed the question of whether the state of Georgia could impose criminal penalties on non-Indians. In Worcester v. Georgia,'° the Court ruled in favor of the white petitioner, determining that the state had no authority over persons and actions within the boundaries of the Cherokee Nation and that state laws did not extend into Indian Country. While on one level the decision affirmed indigenous sovereignty, it also reaffirmed that tribes fell under the "protection" of the federal government, institutionalizing the plenary power" of Congress over Indian nations. Nevertheless, Jackson—the consummate Confederate—was incensed by the Worcester decision and its apparent intrusion into states' rights. Upon 40 Chapter Two hearing the decision, he is reported to have exclaimed, "John Marshall made his decision: now let him enforce it" (Deloria and Lytle 1983, 33). Shortly afterward, in an unprecedented display of executive power, Jackson refused to comply with the Court's ruling and ordered the removal of Eastern Indians to Western reservations, sending thousands of Cherokees to their death on the Trail of Tears. If there existed any doubt, this single act of executive defiance confirmed the imperialist power of the presidency, exiling tribes to their eternal status as colonies of the United States and reinforcing the notion of "democracy" as a white man's game. Indeed, the aggregate effect of centuries of subjugation and Marshall's own assertions of white supremacy through the Doctrine of Discovery created a climate wherein state and federal officials felt free to overlook and deny indigenous rights without any fear of retribution. This basic asymmetry of power has ensured the interminability of the battle for indigenous sovereignty against the forces of democracy. Imposed Democracy: 1871-1968 In 1871, shortly after the Civil War, the war-weary nation formed the Indian Peace Commission to resolve lasting hostilities with the Plains Indians. Despite the commission's efforts, however, members of the House of Representatives objected to some of the terms of peace and in a display of surreptitious power, attached a rider to an appropriations bill that brought an end to treaty making (Deloria 1992, 293).12 Thus, with the ostensible "democratic" power of the vote, Congress terminated Indians' rights to negotiate treaties as well as extinguished their only direct means of federal representation. Though the United States continued to negotiate with tribes up through the 1950s, the end of treaty making signified a marked decline in the sovereignty of Indian nations, placing them in a state of political limbo—no longer recognized as capable of formally treating with the federal government, yet remaining separate nonconstitutional political entities (Wilkins and Lomawaima 2001). More significantly, the end of treaty making ushered in the era of imposed democracy where the difference of American Indian nations as "distinct, independent, political communities"13 was slowly erased through the "democratic" processes of incorporation and enfranchisement. In other words, for American Indians "democratization" was a homogenizing force. At times it was imposed with reckless abandon, as in the Major Crimes Act (1885)," the General Allotment Act (1887), and the Termination Act (1953).15 At other times, it was dressed up in the language and spirit of "enfranchisement," as in the Indian Citizenship Act (1924), the Indian Reorganization Act (1934),16 and the Indian Civil Rights Act (1968).17 The net effect of such legislation was a severe attenuation of tribal sovereignty, with allotment levying the most devastating strike. Competing Moral Visions 41 Like other policies in federal Indian law, the groundwork for allotment was laid in the seventeenth and eighteenth centuries when "the narrative tradition of tribalism's incompatibility with white civilization generated a rich corpus of texts and legal arguments for dispossessing the Indian" (Williams 2000, 103). It was during this era when John Locke penned his theory of property, essentially arguing that uncultivated land, by definition, was not "owned" and therefore free for individual appropriation. He more specifically argued that it was "individual labor upon the commons" that removed land "out of the state of nature," beginning private property. This difference of "labor" is what Locke used to establish "the cultivator society's" privilege "to deny the wasteful claims of tribalism to the underutilized 'common' of America" (Williams 2000, 103). He wrote: There cannot be a clearer demonstration of any thing, than several Nations of the Americans are of this (the value added to land by labor) who are rich in Land, and poor in all Comforts of Life; whom nature having furnished as liberally as any other people, with the materials of Plenty, i.e. fruitful soil, apt to produce in abundance, what might serve as food, rayment, and delight; yet for want of improving it by labor, have not one hundredth part of the Conveniences we enjoy; and the king of a large fruitful territory there feeds, lodges, and is clad worse than a day labourer in the England. (cited in Williams 2000, 103-104) Nearly two hundred years later, U.S. senator and self-proclaimed "friend of the Indians" Henry Dawes advocated for the reallocation of tribal lands based on Locke's theory of property, by then a firmly established marker of civilized peoples and democratic organization. In short, he argued that the normative "deficiency" of tribalism constituted proper grounds for the dissolution of tribal lands. In a speech to the Senate, Senator Dawes articulated the essential differences between "tribal" and "civilized" societies: The head chief told us that there was not a family in the nation that had not a home of its own. There is not a pauper in that nation, and that nation does not owe a dollar. It built its own capitol, in which we had this examination, and built its schools and hospitals. Yet the defect of the system was apparent. They have got as far as they can go, because they hold their land in common. It is (the socialist writer) Henry George's system, and under that there is no enterprise to make your home better than that of your neighbors. There is no selfishness, which is at the bottom of civilization. Till these people will consent to give up their lands, and divide them among their citizens so that each can own the land he cultivates, they will not make much progress. (cited in Hendrix 1983,32) Based on this reasoning Dawes and his counterparts convinced Congress that Indian "civilization" could be achieved only through teaching Indians the 42 Chapter Two virtues of private property.18 In 1887 the General Allotment Act was inaugurated, "authorizing the President, at his discretion, to survey and break up the communal land holdings of tribes" into individual allotments (Wilkins and Lomawaima 2001, 108). Depending upon various criteria'9 established by the Dawes Commission and the BIA, individual (male) tribal members received 160-, 80-, or 40-acre land parcels.20 Allotments were held in trust by the government for a period of twenty-five years, during which time "the Indian owner was expected to learn proper business methods" (Deloria and Lytle 1983, 8). At the end of the trust period,21 the allottee received free and clear title to their land and was "awarded" U.S. citizenship, which placed him under state jurisdiction. Finally, after all allotments were dispensed, the balance of reserve territory was declared "surplus" and opened to non-Indian homesteading, corporate utilization, and/or incorporation into national parks and forests (Churchill and Morris 1992). As a result of the Dawes Act, the aggregate Indian land base was legally reduced from approximately 138 million to 48 million acres or by nearly two-thirds22; tribes were divested of their right to determine their own membership; specious identification procedures created various "classes" of Indians, commencing enduring divisions between "full-bloods," "mixedbloods," "traditional," and "assimilated" Indians; and, the trust doctrine was severely violated. Arguably more devastating than the direct implications of allotment was the ensuing conflation of dispossession with citizenship. The decimation of collective land holdings and renouncement of tribal membership were explicit preconditions for citizenship. Indeed, at the zenith of allotment, naturalization ceremonies involving the explicit repudiation of tribal ways and acceptance of the "civilized" life were commonplace. For example, some ceremonies required the Indian-citizen-to-be to take a final symbolic shot of his bow and arrow and to then place his hands on a farmer's plow.23 Such ceremonies clearly linked the act of becoming a citizen to the performance of cultural suicide, requiring Indians to demonstrate proper submission to the superior norms of patriarchy, husbandry, private property, and the nuclear family.24 Rather than improving status, citizenship merely conscripted Indians to (whitestream) civil, criminal, and inheritance laws, without extending the same civil rights of other citizens. The process of imposed democracy was thus manifold with the denigration and dismantling of both Indian cultural and economic systems. Specifically, it was believed that only after the cultural difference of tribalism was erased could the economic project of assimilation succeed. In other words, after assimilated Indians were effectively-placed under the jurisdiction of the state, so too could their lands and resources. Competing Moral Visions 43 Ironically, the sweeping intentions of the Dawes Act contributed as much to its own downfall as it did to that of tribal rights. As Vine Deloria Jr. and Clifford M. Lytle (1983, 10) observe, "difficulties in interpretation arose .. . so that by the first decade of the [twentieth] century it no longer resembled a national policy but an ad hoc arrangement [due to] the numerous exceptions and exemptions that had been attached to it." The incoherent method of implementation weakened the overall impact and, as a result, the Dawes Act never became the panacea or final solution to the "Indian problem" that the government anticipated. In 1924, the Indian Citizenship Act was passed as a "clean-up measure" to the Dawes Act, imposing U.S. citizenship on all American Indians not previously naturalized. The unilateral imposition of citizenship (re)incited both collective and individual resistance among Native peoples. For instance, the entire Grand Council of the Six Nations (Iroquois Confederacy) declined U.S. citizenship, stating in a letter to the president that "they were not then, had never been, and did not intend to become American citizens"(Deloria 1985, 18). Though Indians gained some measure of protection from citizenship status, it ultimately forced greater incorporation, providing the rationale for even more pernicious attacks on tribalism such as the Indian Reorganization and Termination Acts. While the Indian Reorganization Act (IRA) put an end to allotment policies (providing for the purchase of new lands and the restoration of some unallotted lands), virtually all provisions were contingent upon a tribe's pledge to "reorganize"—to adopt Westernstyle constitutions, to form and elect tribal councils, and to implement a variety of economic development plans (e.g., Western conservation measures, community and educational loan programs). Thus, the net effect of the IRA was that it dramatically increased federal supervision over Indian nations. As Hauptman (1992, 328-329) notes, "even when the majority of an Indian nation valued the opportunity to rebuild .. . many viewed the increased federal supervision as . . . [an] unpleasant tradeoff." Indeed, there is ample evidence that reorganization was primarily fueled by the growing desire to gain credible access to tribal resources. Specifically, the establishment of puppet governments provided federal officials and their corporate accessory's increased access to Indian resources, paving the way for the future control and appropriation of Indian lands 25 The next marked rise in state power over Indian Country came in the 1950s, otherwise known as the "termination era" after the official federal policy of that time (Wilkins and Lomawaima 2001, 208). As previously discussed, "termination" referred to the U.S. government's decision to officially sever (terminate) federal benefits and support services to certain tribes, bands, and California rancherias, forcing the dissolution of their reservations (Wilkins and Lomawaima 2001, 209). The act effectively abrogated all federal government 44 Chapter Two to tribal government relations, passing authority over to the states and violating the federal government's own constitutionally mandated trust responsibilities 26 Despite the numerous violations of their rights, Indians did not immediately involve themselves in civil rights issues as they arose in the early 1960s. On the contrary, they worked hard to distinguish themselves from other minorities so as to prevent further conflation of their issues and status with that of other marginalized groups. Nevertheless, when the Indian Civil Rights Act (ICRA) was surreptitiously attached to the Fair Housing Act (1968), Indians suddenly found themselves deeply enmeshed in civil rights rhetoric and law. Though the ICRA fettered state jurisdiction over Indian affairs (enhancing sovereignty), it represented an overall diminishment in tribes' abilities to selfgovern. Specifically, it greatly restricted the power of tribal court judges by remaking the entire judicial system "in the White man's image" (Deloria 1983, 213). Even more damaging than the direct assault on the powers of tribal judges was the collateral damage of the ICRA. Deloria (1983, 213) writes: [before the ICRA] [t]raditional Indian society understood itself as a complex of responsibilities and duties. The ICRA merely transposed this belief into a society based on rights against government and eliminated any sense of responsibility that the people might have felt for one another. Granted, many of the customs that made duties and responsibilities a serious matter of individual action had eroded badly in the decades since the tribes had agreed to move onto the reservations, the impact of the ICRA was to make these responsibilities impossible to perform because the act inserted the tribal court as an institution between the people and their responsibilities. People did not have to confront one another before their community and resolve their problems; they had only to file suit in tribal court. [Thus while] the Indian Civil Rights Act [is] understood by most people as a major step in the fulfillment of Indian self government . . . was it what Indians really wanted? As articulated by Deloria, the ICRA merely exacerbated the existing "class" divisions among Indians (i.e., traditional versus assimilated) initially enacted by the Dawes Act. These divisions took on greater significance as traditional Indians fought to retain what was left of tribal governance structures while assimilated Indians sought the power and protection of "democracy." These growing tensions played out in the national spotlight in the infamous siege at Wounded Knee. While the siege was depicted as a "civil war" among the Oglala, it was clearly a battle between traditional peoples (representing seventy-five different nations) and whitestream forces embodied in agents of the FBI and BIA. Competing Moral Visions 45 Though the occupation of Wounded Knee is an extreme manifestation of intratribal divisions, Deloria contends that it symbolizes the conflict that rages in all Indian communities—one typically characterized as Indian versus Indian but is ultimately about the psychosocial, economic, and political effects of colonization (a.k.a. "democratization"). On the other hand, while the ICRA policies of imposed democracy significantly depreciated Indian sovereignty, they continued to deal with Indians on a federal level, de facto conceding their status as tribal peoples and "domestic dependent nations." This de facto concession of sovereignty kept alive the possibility of self-determination. Indeed, the decade came to a close with the publication of "Indian Education: A National Tragedy —A National Challenge" (the Kennedy report), a comprehensive report that addressed the multitude of issues facing Indian Country. Among other things, the Kennedy report finally brought a strong congressional voice to Indian concerns, bolstering hope for the coming era. Self-Determination: 1970–Present In 1970, in an address to Congress, President Nixon promised "self-determination without termination," stating more specifically that "every Indian community wishing to do so should be able to control its own Indian schools" (AIPRC 1976, 111). Later that same year, promises were also made to transform the BIA "from a management to a service organization" (AIPRC 1976, 117). Such professions intimated that 1970 would be a "turning point in Indian affairs" (AIPRC 1976; Fuchs and Havighurst 1972; Lomawaima and McCarty 2002; Szasz 1999). Indeed, the post–civil rights ethos, given voice in the Kennedy report, led to the passage of the Indian Education Act in 1972 and the Indian Self-Determination and Education Assistance Act in 1975, two of the most significant pieces of legislation aimed at establishing indigenous control. Among other things, the Indian Education Act of 1972 aimed to increase Indian participation and control over Indian education by allowing more direct access to operating funds (Deloria and Lytle 1984). Unfortunately, since the act was based on hearings conducted a decade prior (for the Kennedy report), several of its provisions assumed conditions that no longer existed while others "solved" problems already being addressed by the Office of Economic Opportunity and other agencies (Deloria and Lytle 1983). Furthermore, while the act defined a national policy for Indian education, it evidenced "the same basic flaws as previous poverty legislation" (Deloria and Lytle 1983, 219). That is, instead of offering a new and comprehensive organization of Indian educational programs, it simply amended existing structures to include "an Indian component." 46 Chapter Two Still, the legislation put Indian educational concerns on the congressional radar screen, laying the groundwork for passage of the Indian Self-Determination and Education Assistance Act three years later. This legislation authorized tribes not only to initiate new educational programs but also to determine the level of tribal participation in existing programs. At long last, it appeared that American Indians had the freedom and legislative support to exercise educational self-determination. The promise of Indian-controlled education was, however, mixed. First, years of colonization left tribes with little experience and knowledge of how to construct a Native educational system. As such, few of the "new" programs significantly deviated from the established whitestream norm. The other major challenge to innovation was funding. Specifically, promises of selfdetermination did little to change the fact that responsibility for funding remained divided among the Department of Education, Congress, and the BIA. Despite the stumbling blocks, however, there were, by 1978, thirty-four indigenous community-controlled schools (Lomawaima and McCarty 2002, 291). The shining example among them was the Rough Rock Demonstration School, uniquely created through a contract between the Office of Economic Opportunity, the BIA, a tribal trustee board, and a locally elected school board (Lomawaima and McCarty 2002, 290). Regardless of their success, however, community schools became just another option on the growing menu of Indian education. So while Indians theoretically controlled education through their own tribal schools, Indian students (and resources) remained dispersed among BIA, mission, and public schools, greatly limiting the possibility of a truly self-determined, Indian-controlled educational system. While tribes were the beneficiaries of many programs instituted under the new policy of "self-determination ,"27 Deloria and Lytle (1984, 216) maintain that, "When the dust finally clears . . . [people] will realize that the progress of the sixties and seventies was purchased at an enormous price." That price, according to the authors, is the fact that Indians were forced "to pose as another American domestic minority" in order to benefit from national social welfare legislation. This observation captures the quintessential dilemma of Indian peoples, that is, to "pose" as domestic minorities and secure civic benefits at the price of absorption, or to claim their distinction as sovereign peoples and "domestic dependent nations," risking continued subjugation for cultural integrity.28 Summary As delineated thus far in this chapter, the deep structures of American democracy and its attendant institutions, including schools, have been designed Competing Moral Visions 47 for the express purpose of extinguishing tribalism. As argued by Williams, the Christian myths of unity and hierarchy have been transposed to federal Indian law. Specifically, unity under God has been replaced by unity under the nation-state, and the hierarchy of the church by that of the federal government. As a result, tribal peoples have been significantly divested of the traditional organizational structures and knowledge necessary to create and sustain truly self-determined, indigenous systems of governance and education. Such a history leaves significant questions at the turn of the twenty-first century. First and foremost, how can schools—which are deeply embedded in the exhaustive history of colonization—be reimagined as sites of indigenous sovereignty and self-determination? It is evident from this discussion that liberal models of democracy, "founded upon discourses and practices of structural exclusion," have given rise to liberal models of education that are deeply inadequate to the need of American Indian students (McLaren 1997, 294). They have been especially failed by the liberal project to tie "multiculturalism" to democracy. Though advocated as a "democratic" model premised on the incorporation of all peoples and values, "multiculturalism" operated in a homogenizing way, centered on unifying all peoples in the nation-state. Within this model, "diversity" could be expressed only within the preexisting, hegemonic frames of the nation-state, reading democracy as "inclusion." As Mitchell explains, "Historically, liberal practitioners have 'generously' attempted to include members of the nation who have been disenfranchised legally and culturally. . . . Yet this inclusion springs from the premise that Western liberalism is not only a superior philosophical foundation but also that its institutional application in realms such as education is good for everyone" (2001, 69). Such logic fails to account for those who represent the "constitutive outside."29 That is, peoples who can "never participate fully or unproblematically as democratic citizens of the nation because they are always already located outside of it" (Mitchell, 2001, 70). Moreover, in the "generous" rhetoric of inclusion it is patently unacceptable for groups to "step outside the discourse and argue for separateness" as a more advantageous location for their own cultural survival and the good of the


 Hope this could help

  • Upvote 1

Share this post


Link to post
Share on other sites

I mean there is definitely some theory against SCOTUS Fiat that you could use, but you could also read a K about SCOTUS upholding racist treaties and ruling Native Tribes to be "dependent Nations" lacking sovereignty, thus disempowering natives and upholding white supremacy (sure you could link it out to Cap lol). I took it from a Set Col K but you could easily retag it. It has a lot of good examples of specific rulings that hurt Tribes, though it is kinda over-large IMO, apologies. 

The Federal Government Paternalizes and disempowers Native People, their efforts to include Natives simply result in Assimilation and Destruction

[CARD]

 Hope this could help

Thank you! This will really help, I should be able to link this to several different arguments! 

Edited by Capulet
  • Upvote 1

Share this post


Link to post
Share on other sites

Wait hold on, you can just go for states with the PT something like" The 50 states should pass laws abolishing all instances of corporal punishment in schools.

I know of the SC precedent the aff probably uses-- it doesn't say that corporal punishment is a right, it says it's not unconstitutional. so EZ 100% solvency

  • Upvote 1

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

×
×
  • Create New...