Where is the source of land rights?

Where is the source of land rights?

by Lillian Jamison-Cash -
Number of replies: 0

“For much of the twentieth century, jurisdictional barriers prevented the assertion of claims for Native American compensation based on claims that were not derived from treaty rights” (Maltz, 9). Should these rights have to be established through treaty? Does the U.S. have to sign a treaty with every other sovereign state it enters into negotiation with in order for their land rights to be respected? How inherently sovereign are Indian nations?

Until 1946, the Courts could only hear land rights cases pertaining to treaties. This makes sense, given that it is in cases where a contention between the U.S. government or its citizens are in contention with Indian land rights that the U.S. government would have jurisdiction. In cases without a treaty, why should the sovereign authority of the tribe not be respected? This seems somewhat analogous to the 1871 act of Congress prohibiting all further treaties. If Indians are members of a different nation, how could Congress make laws for them or the Court decide cases for them? These are acts of government done for U.S. citizens, not citizens of other nations. The 1871 act and the 1946 decision can thus be seen as markers of dwindling Indian autonomy.

Tee-Hit-Ton is exemplary of the seemingly senseless flip-flopping in decisions on aboriginal land title. In alternating fashion, cases which have been in support of aboriginal title and compensation have been Worcester, Mitchell, later case law, and Tillamook I. Those against aboriginal title and compensation were M’Intosh, Lone Wolf (and Kagama), Tillamook II (stating that the tribe was only compensated because of the statute, not aboriginal right/5th Amendment), and Tee-Hit-Ton. Rather than relying on more recent precedent, Lone Wolf upheld Congress’s plenary power in Kagama. The Lone Wolf Court also said that power was with Congress and didn’t speak on aboriginal title, even though the Court had just spoken on aboriginal title in Worcester and Mitchel. Similarly, Tee-Hit-Ton reuses language from M’Intosh about the “right of occupancy,” rather than of property or aboriginal title, of Indian tribes. This process of amnesiac selective memory is consistently damaging to Indian rights and seeks to further U.S. national self-interest.

Reed’s decision that “Indian occupation of land without government recognition of ownership creates no rights against taking or extinction by the United States protected by the Fifth Amendment or any other principle of law” (11) cites the source of Indian property rights with the U.S. government rather than with Indian sovereignty. This is the danger in basing decisions off of statutes and treaties rather than the inherent validity of aboriginal title.


This article also highlights that public perception of Indians does matter. Citing small numbers and allies and the American public self-image (12), Maltz says that the Court essentially couldn’t judge that the government had done something wrong, and that taking “savage” lands was coherent with the U.S.’s “civilizing mission.” This is consistent with the idea that the seemingly random flip-flopping of Court decisions is in fact a result of U.S. national and foreign policy and political agenda.