6 Ann. Surv. Int’l & Comp. L. 175
[Reprinted by permission, Annual Survey of International
and Comparative Law, Golden Gate University]
Annual Survey of International
& Comparative Law
*175 WE LIVE ON THEIR LAND: IMPLICATIONS OF LONG-AGO TAKINGS OF NATIVE
AMERICAN INDIAN PROPERTY
Anthony Peirson Xavier Bothwell [FNa1]
Copyright © 2000 Golden
Gate University; Anthony Peirson
At the dawn of the
white man's millenium, the drums of 15 million
ghosts echo silently across fields and forests, mountains and deserts,
lakes and rivers of once proud peoples. While American society aspires
to realize more perfect justice in the twenty-first century, surviving
members of great tribes, heirs of a continent, are the poorest of
the poor. Iroquois. Cherokee.
Choctaw. Seminole. Pueblo.
Five hundred nations. Nations that were
betrayed, subjugated, plundered and forgotten. We cannot undo that
which was done--the breaking of treaties, the trail of tears, all
the sorrows of long-ago years. We cannot bring
back to the world of the living those who perished in the American
holocaust. We cannot take away homes and enterprises of present- day
Americans to pay tribute to indigenous people who passed to their
final hunting ground in that apocalypse of more than a century ago.
But if justice on this earth can be imagined, so can a practical way
to achieve it. Provided, that is, we are willing to reconcile ourselves
to each other, and to historical truth.
*176 Before the first
Europeans landed in what to them was a New World, as many as 15 million
indigenous people lived in the area now occupied by the 50 states
of the Union. [FN1] The white man took their land and, in
the doing of it, took their lives. The Native Americans were almost
exterminated. By 1910, only about 200,000 American Indians still lived.
Thus it was "proportionately as if the population of the United
States were to decrease from its present level to the population of
Cleveland." [FN2] The magnitude of mass death was even
greater than that of the Holocaust, in which six million Jews perished.
The loss of the land, more than two billion acres from the Atlantic
to the Pacific, was so vast that it admits of no comparison in world
The taking of the continent
occasioned untold deaths due to battles, massacres, forced marches,
starvation, disease and broken hearts. The white settlers brought
from Europe "a terrible collection of poxes and fluxes, flus
and fevers for which the reds had little or no
natural immunity." [FN3] An 1855 Sacramento newspaper editorial said:
The accounts from the
North indicate the commencement of a war of extermination against
the Indians .... The intrusion of the white man upon the Indians'
hunting grounds has driven off the game and destroyed their fisheries.
The consequence is ... starvation ... stealing and killing. Had reasonable
care been exercised to see that they were provided with something
to eat ... no necessity would have presented itself for an indiscriminate
slaughter of the race. [FN4]
The destruction of
Native American nations is all the more ironic in light of the contribution
Indians made to the formation of our country. Our Founders had extensive
and generally friendly interactions with the Native Americans, who
consequently exerted formative influences on our art, food and culture,
our appreciation of nature, and our ideas about democracy. Their disrespect
for authority influenced our own revolutionaries. Their penchant for
helping others set an example for us. So did their thirst for freedom,
and their commitment to participative democracy. Franklin, Jefferson
and others internalized Indian political *177 and social concepts, and embraced ideas of personal liberty that
went far beyond anything ever imagined in England, from which the framework
of our law came. Iroquois federalism--with six nations (Mohawks, Oneidas,
Onondagas, Cayugas, Tuscaroras
and Senecas) in a league,
having checks and balances, separation of civilian and military authority,
limited government, protection of individual rights, and tolerance
for all religious views--set a model for our federal system. [FN5]
II. INDIAN TRIBES BECAME
SOVEREIGN AND INDEPENDENT NATIONS RECOGNIZED PURSUANT TO INTERNATIONAL
By the time European
explorers began arriving along the Atlantic seaboard,
Native American nations already were well-established. In fact, the
Indian nations possessed the requisite attributes of sovereign, independent
states under international law as then it existed. It follows from
this that the potentates, agents and exiles of Christian states did
not have any right simply to take away that which belonged to the
Francisco de Vitoria, one of the founders of international law, taught
that the Europeans had a duty to respect the American Indians' autonomous
powers and land entitlements. [FN6] He said the indigenous Americans "have
polities which are orderly arranged and they have definite marriage
and magistrates, overlords, laws, and workshops and a system of exchange."
[FN7] Vitoria said
the Indians owned the land in America, and that "discovery"
by Spanish explorers could not transfer title to the land "anymore
than if it had been they who had discovered us." [FN8] Vitoria's
guidelines for European dealings with Native Americans helped to develop
a system of international law applying to all
peoples worldwide. [FN9] And Hugo Grotius,
father of international law, taught that "the right to enter
into treaties is so common to all men that it does not admit of a
distinction arising from *178 religion"; [FN10] thus, the indigenous nations of America
were as sovereign as the Christian states of Europe.
Chief Justice John
Marshall discussed statehood in Cherokee Nation v. Georgia, 30
U.S. 1 (1831), in which he postulated that the Cherokees
were a "dependent domestic" nation. [FN11]
And yet Marshall, writing for the high court the following year in
Worcester v. Georgia, 31 U.S. 515,
542-543 (1832), acknowledged that the Indian tribes
were sovereign and independent nations prior to their discovery by
European explorers. [FN12]
As for the significance
of the charters granted by the English king, Marshall conceded in
Worcester, "The extravagant and absurd idea, that the feeble
settlements made on the sea coast, or the companies under whom they
were made, acquired legitimate power by them to govern the people,
or occupy the lands from sea to sea, did not enter the mind of any
*179 man." [FN13] What William Penn, Lord Baltimore and
the other charter holders got by virtue of discovery, Marshall said,
was (a) true title subject only to the Indians' mere occupancy and
(b) the right to wage "defensive war" [FN14] which would extinguish even the Indians'
occupancy rights. [FN15]
The Chief Justice noted that the colonists knew the Indians "might
be formidable enemies, or effective friends," and so "their
alliance was sought by flattering professions, and purchased by rich
presents. The English, the French, and the Spaniards, were equally
competitors for their friendship and their aid." And he quoted
the British superintendent of Indian affairs, a Mr. Stuart, who told
Indian leaders in a gathering at Mobile
soon after the peace of 1763: "As you may be assured that all
treaties with your people will be faithfully kept, so it is expected
that you, also, will be careful strictly to observe them." In
the network of alliances that existed in the period leading up to
the American Revolution, the English crown protected Indian nations
from other Europeans, and allied Indians protected the crown colonies
from other Indians and from the French. Marshall said the Indian
treaties "had never been misunderstood. They had never been supposed
to imply a right in the British government to take their lands, or
to interfere with their internal government ....
The only inference to be drawn from them is,
that the United States considered the Cherokees
as a nation." [FN16]
Thus it was recognized
that the American Indian nations were sovereign and independent nations
until the whites came and took away many of their rights and then
declared them to be absorbed within the United States. Justice Thompson's
insightful dissent in Cherokee Nation elaborated on the undeniable
sovereignty of the Cherokees under international law. [FN17]
*180 The practice of the young United States in forming treaties with
Indian tribes is evidence that the Framers and ratifiers
of the Constitution recognized the status of Indian nations as sovereign
and independent nations. Even before the Constitution was ratified,
the Confederation negotiated treaties such as the 1778 treaty with
the Delaware Nation. Chief Justice Marshall, in the Worcester decision,
discussed at length the treaty with the Delawares,
noting the "language of equality in which it is drawn ...."
[FN18] Justice Thompson, in his Cherokee Nation
dissent, recalled that the treaty with the Delaware Indians
may serve to show in
what light the Indian nations were viewed by the congress at that
day .... This treaty, both in form and substance purports to
be an arrangement with an independent sovereign power. It ... contains
stipulations relative to peace and war, and for permission to the
United States troops to pass through the country
of the Delaware
nation. And the same recognition of their rights runs through all
the treaties made with the Indian nations or tribes, from that day
down to the present time. [FN19]
The adoption of the
Holston treaty of 1791 demonstrated
the intent of our first President and the senate with respect to recognition
of the Cherokee Nation as a foreign power. Justice Thompson pointed
The treaty was made
soon after the adoption of the present constitution. And in the last
article it declared that it shall take effect, and be obligatory
upon the contracting parties as soon as the same shall have been ratified
by the president of the United States, with the advice and consent
of the senate; thereby *181 showing the early opinion of the government of the character of
the Cherokee nation. The contract is made by way of treaty, and to
be ratified in the same manner as all other treaties made with sovereign
and independent nations; and which has been the mode of negotiating
all subsequent Indian treaties.
And this course was
adopted by President Washington upon great consideration, by and with
the previous advice and concurrence of the senate. In his message
sent to the senate on that occasion, he states, that the white people
had intruded on the Indian lands, as bounded by the treaty of Hopewell,
and declares his determination to execute the power entrusted to him
by the constitution to carry that treaty into fruitful execution
Yet another fallacy
in the position of those who deny the sovereignty of Indian nations--this
one having to do with the citizenship status of the Indians--was pointed
out by Justice Thompson. He wrote that the U.S.-Cherokee treaties
of December 26, 1817 and March 10, 1819, for example,
stipulated that Indians choosing to do so could become citizens of
the United States,
thereby clearly showing
that they were not considered citizens at the time those stipulations
were entered into, or the provision would have been entirely
unnecessary if not absurd. And if not citizens, they must be aliens
or foreigners, and such must be the character of each individual belonging
to the nation. And it was, therefore, very aptly asked on the argument,
and I think not very easily answered, how a nation composed of aliens
or foreigners can be other than a foreign nation. [FN21]
In the same vein, Justice
M'Lean, concurring in Worcester,
wrote: "No one has ever supposed that the Indians could commit
treason against the United
States. We have punished them for
their violation of treaties; but we have inflicted the punishment
on them as a nation, and not on individual offenders among them as
Chief Justice Marshall
for the court in the seminal case of Johnson v. M'Intoch,
21 U.S. 543 (1823), did not deny that the taking of Indian
*182 sovereignty and land was unjust and violative
of international law. [FN23] Although the U.S. Constitution recognizes
the valid force of international law, the Framers gave the federal
authorities constitutional power to act in violation of international
law. [FN24] When the United
States violates international law, U.S. courts offer no remedy unless the Constitution
or laws of the United
States were at the same time violated.
However, U.S. violation of international law, even when constitutional
and in accord with domestic law, does not relieve the United States
of its international responsibilities; i.e., its obligations to the
world community, under international law--which has the binding force of law
even in those instances when United States courts are disabled from
enforcing it. Thus the liability of the United
States as a member of the world community was
acknowledged by Secretary of State Bayard in 1887:
It has been constantly
maintained and also admitted by the Government of the United States
that a government can not appeal to its municipal regulations as an
answer to the demands for the fulfillment of international duties.
Such regulations may either exceed or fall short of the requirements
of international law, and in either case that law furnishes the test
of the nation's liability and not its own municipal rules. [FN25]
In the emergent era
of colonial expansionism, ethnocentrists
such as John Westlake argued that international law existed to protect
"civilised" people only and that, since indigenous people
were "uncivilised humanity," they
could not claim the protection of international law. The British publicist
wrote that the
inflow of the white
race cannot be stopped where there is land to cultivate, ore to be
mined, commerce to be developed, sport to enjoy, curiosity to be satisfied.
If any fanatical admirer of savage life argued that the whites ought
to be kept out, he would only be driven to the same conclusion by
another route, for a government on the spot would be necessary to
keep them out. Accordingly international law has to treat such natives
as uncivilized. [FN26]
*183 If international
law, influenced by ethnocentric jurists and publicists, was revised
so as to accommodate the claims of white settlers, this author believes
it is of doubtful propriety to assert that the American Indian nations
were necessarily bound by the revisions. It is a well-accepted principle
that "a dissenting state which indicates its dissent from a practice
while the [rule of customary international] law is still in a state
of development is not bound by the rule of law even after it matures."
A problem with international
law is, this author believes, the general absence of effective enforcement
mechanisms and, in the case of early American taking of Indian lands,
the absence of any international tribunals at the time of the wrongs
suffered. The enlightened approach today is not to pretend that injustice
did not occur, but rather to face up to the international obligations
implicated by these crimes against humanity--and to fashion creative
remedies designed to seek justice insofar as possible, even if it
be justice incomplete and long delayed.
LAW DOCTRINES OF DISCOVERY AND CONQUEST WERE APPLIED TO THE INDIAN
LANDS UNJUSTLY AND DISHONESTLY
This author submits
that the conventional legal wisdom holds, in essence, that the Indians
were savages who could not understand the concept of owning real
property. Inasmuch as they did not understand the concept of land
ownership, the white man reasoned, the Indians could not possibly
have owned any land. Whites who claimed Indian land could thus rationalize
that they were taking that which was not previously owned by anyone.
But a case can be made that the Indians generally were more enlightened
than the whites who took from them. The indigenous people of North
America, in fact, had a more highly developed sense of
responsibility with respect to the land and natural resources than
the whites who "discovered" it from them.
Alvin M. Josephy, Jr. explained:
A concept concerning
the right of land ownership, basically different from that of the
white man, was shared by most Indians. To them, land and its produce,
like the air and water, were free to the use of the group. No man
might own land as *184 personal property and bar others from
it. A tribe, band or village might claim certain land as its territory
for farming, hunting, or dwelling, but it was held and used communally
.... Some tribes, moreover, regarded the earth as the mother
of all life and thought it impossible to sell ....
Generally, most Indians had respect, if not reverence and awe, for
the earth and for all of nature and, living close to nature and its
forces, strove to exist in balance with them. [FN28]
Tecumseh, the great
Iroquois chief, informed General William Henry Harrison, at Vicennes
in August 1810: "A few chiefs have no right to barter away hunting
grounds that belong to all Indians...." Tecumseh explained
that "all red men have equal right to unoccupied land. It requires
all to make a bargain for all. Until lately, there were no white men
on this continent. Then, it all belonged to the red men. Once a happy
race, they have been made miserable by the white men who are never
contented, but always encroaching. They have driven us from the sea-coast,
and will shortly push us into the lakes." [FN29]
The Indians came to
understand the materialistic values of the white man. It was the whites
who did not apprehend the spiritual value of the land and the concept
of shared ownership which was common to the Indians.
Today's system of international
law evolved from that which was invented by European theorists such
Relying heavily on ecclesiastical humanism and fundamental values
taught by the Catholic Church, these theorists tended to view God
as the source of all legitimate worldly authority. Historically, the
church taught that human beings have fundamental rights given by God,
rights that may not be taken unjustly by others. Founders of international
law applied this principle of interpersonal morality to the relation
between nations. The principle was retained even though international
law was secularized by its most influential author, Hugo Grotius, who cast its norms as a law of nature or "dictate
of right reason." [FN30]
The Christian church,
since its founding by Jesus Christ, espoused the Golden Rule and the
principles of peace and justice for all people. *185 Ironically, Pope Alexander VI, head of
the church and Vicar of Christ, purported to grant to Spanish monarchs
all lands discovered by their agents that were not already ruled by
Christian sovereigns. [FN31] But Vitoria, citing international
law concepts based on traditional Christian precepts, taught that
the pope lacked power to grant lands already owned by the American
Indians. [FN32] Using language similar to that found
in papal bulls, England's
King Henry VII issued a charter which purportedly authorized John
Cabot to "discover ... countries, regions or provinces of heathens
and infidels ... which before this time have been unknown to all Christians."
Henry VII instructed Cabot to "subdue, occupy and possess"
such lands, "getting unto us the rule, title, and jurisdiction
of the same." [FN33]
King James I issued
letters patent in 1609 purporting to "give, grant, and confirm"
to Robert, Earl of Salisbury, associates and successors, "the
lands, countries and territories ... in that part of North America
called Virginia," [FN34] a territory which included the present
states of Virginia, Illinois and areas in between. The title obtained
by the English in virtue of the Cabot letters patent passed in 1776
to the newly independent United
A. "INDIAN TITLE"
A seminal ruling was
pronounced in 1823 by the U.S. Supreme Court in an Illinois land dispute
between defendant, William M'Intosh, who
traced his title to the Cabot grant, and plaintiffs,
devisees of Thomas Johnson, who traced his title to the Pinkeshaw
Indians. [FN36] Chief Justice Marshall--while conceding
that the Indian tribes were "independent nations" [FN37] before "the whites" [FN38] arrived and decided "to appropriate"
Indian lands, [FN39] and that the original English claims
may indeed have been "extravagant" [FN40]-- nevertheless ruled against the validity
of the title traced to the Indians. [FN41] Marshall reasoned that, because the whites'
*186 claims were over the course of time "sustained" [FN42] "by the sword," [FN43] "the actual state of things"
required the Supreme Court to apply "a new and different rule."
[FN44] The Chief Justice wrote that there was
some "excuse, if not justification" for the European land
grab in America because of "the character and habits of the people
whose rights have been wrested from them." [FN45] The new rule, created for the purpose
of justifying Christian white-supremacist taking of American Indian
lands, was the doctrine of discovery and conquest and the correlative
notion of "Indian title." [FN46]
The doctrine, as set
forth by Marshall in Johnson v. M'Intosh,
21 U.S. 543 (1823), allowed European colonizers-- England, Spain,
France and Holland--to
divide up America
for their own convenience and gain. According to this doctrine, the
white nation that "discovered" and claimed a particular
American territory became its sovereign and holder of ultimate title.
If uncivilized heathens happened to live there,
the argument went, they merely had a right of occupancy until they
were gone--or until their occupancy right was consensually given up,
sold for consideration or taken by "conquest." The corollary,
the native inhabitants' right of occupancy, was called "Indian
title," not to be confused with real title which was held by
white supremacists. Further, if the Indians were driven away or subjugated
by "conquest," i.e., in a war the whites considered to be
just, then the limited Indian title was deemed to be extinguished--and
the Indians existed at the mercy of the Christian conqueror, who acquired
title free of all legal impairments. [FN47]
This author submits
that the precept that Indians were incapable of understanding and
holding any claim to land other than mere occupancy was inequitable.
It represented an underestimation of the level of culture and intellect
of American Indian peoples, and a self-serving rationalization invented
by whites who subscribed to the supremacist ideas prevalent among
Europeans in the era of discovery.
According to Chief
Justice Marshall in M'intosh, American Indians
were "warlike" [FN48] and "savages," [FN49] whose land rights, other than mere occupancy,
were "wrested" [FN50] by the whites' "pompous claims"
[FN51] and *187 "superior genius." [FN52] The only land interest that a Native
American was deemed to have the capacity for was the doctrinally limited
"Indian right of occupancy." [FN53] Marshall reasoned that "the rights
of the original inhabitants...were necessarily, to a considerable
extent, impaired," and "their rights to complete sovereignty,
as independent nations, were necessarily diminished," just because
"discovery gave exclusive title to those who made it." [FN54] One of the sad ironies of M'Intoch was that it purported to rely on "universal
recognition" of "principles" of law, [FN55] even while it conceded that the "restriction"
imposed on Indians' land rights "may be opposed to natural right,
and to the usages of civilized nations," [FN56] i.e., inconsistent with international
law at the time.
The Indian title concept
was summed up in Justice Baldwin's concurring opinion in 1830 in Cherokee
Nation v. Georgia:
While the different
nations of Europe respected the rights of the natives as occupants,
they asserted the ultimate dominion to be in themselves; and claimed
and exercised as a consequence of this ultimate dominion, a power
to grant the soil while yet in the possession of the natives. These
grants have been understood by all to convey a title to the grantees,
subject only to the Indian rights of occupancy. [FN57]
B. DISCOVERY THEORY
As we have seen, apologists
for European kings' grants of American Indian lands to colonizers
rationalized that the aboriginal "savages" could not truly
own land because mentally they could not grasp the concept of
land ownership. Concededly, the Native Americans had different ideas
about land rights than the Europeans, but it does not necessarily
follow that the Indians had inferior understanding or inferior rights.
John Winthrop said Indians (who moved farms and villages periodically)
were capable of mere occupancy, not true possession of land, because
they lacked enclosed habitations and permanent cultivation. [FN58] The Europeans had the idea that a person
can have exclusive rights to land or, *188 alternatively, can be the owner of title
to land temporarily occupied or physically possessed by someone else.
The Indians tended to believe that the land and its resources were
provided by the Almighty for people to share on a reasonable basis
according to their needs. In the wide open spaces of America, where many tribes were hunters
or migratory, this concept made a lot of sense. It did not,
by any stretch of logic or fairness, give newly arrived European settlers
the right to assert that they were the true owners of title to the
land where Indians had lived since time immemorial.
It was a fundamentally
wrong-headed argument that the Indians could not own land because
they did not understand or claim absolute title or fee interest. It
is well understood, even in common law, that no title entails totally
absolute rights. No person, no owner, not even the state has an unlimited
right to despoil natural resources to the detriment of neighbors or
future generations. It is particularly ironic that popes, potentates
and plenipotentiaries who claimed to be guided by Christian principles
would rely on the difference between Indian and European property
theories as a justification for Europeans unilaterally to claim title
to Indian lands. The Catholic church itself (one of the largest landowners
in the world) teaches respect for the conscientious religious convictions
of all people; [FN59] but of course there have been episodes
throughout church history when clerics or even popes-- while calling
aborigines "infidels"--have themselves deviated from such
In doctrine traced
to Scripture, the church also teaches the idea that the gifts of the
earth are provided by God, that human beings are the stewards of the
natural world, that we all have a moral duty to respect the rights
of not only our neighbors today but also generations to come in the
future. [FN60] The Christian idea of human stewardship
of the earth can be analogized to the Native American idea of responsibility
for sharing the earth and protecting its blessings for posterity.
It is therefore especially ironic that Europeans would so twist the
system of international law, derived from Christian humanism, so distort
it to allow settlers and colonists to steal America from the Indians.
*189 Grotius disapproved
of the notion that discovery of inhabited land confers title on the
discoverer, "even though the occupant may be wicked, may hold
wrong views about God, or may be dull of wit. For
discovery applies to those things which belong to no one."
According to international law, the discoverer's claim would not
be valid unless subsequently consummated by actual occupation of the
land by the discoverer's people. Max Huber, arbitrating a dispute
between the Philippines and the Dutch
East Indies, pointed out that, according to the view that
has prevailed at any rate since the nineteenth century, an inchoate
title of discovery must be completed within a reasonable period by
the effective occupation of the region claimed to be discovered. [FN62]
The illegitimacy of
the doctrine of discovery as applied to Native Americans was effectively
conceded by Joseph Story, nineteenth century U.S. Supreme Court justice,
who insisted, nonetheless, that the entitlements based on the doctrine
must be permanently accepted merely because they were accepted. In
Story's circular line of reasoning:
The Truth is, that
the European nations paid not the slightest regard to the rights of
the native tribes. They treated them as mere barbarians and heathens,
whom, if they were not at liberty to extirpate, they were entitled
to deem mere temporary occupants of the soil ....
The right of discovery, thus asserted, has become the settled foundation,
on which the European nations rest their title to territory in America;
and it is a right which, under our governments, must now be deemed
incontestable, however doubtful in its origin, or unsatisfactory in
its principles. The Indians ... have been deemed to be the lawful
occupants of the soil, and entitled to a temporary possession
thereof, subject to the superior sovereignty of the particular European
nation, which actually held the title of discovery. [FN63]
It is a repugnant implication
of Justice Story's logic that the victims of a crime against humanity
may claim no remedy for the reason that they did not receive a remedy.
*190 The Cabot charter, noted above, purported
to give an English discoverer an absolute right to subdue the Indians
and to seize and possess their lands, in derogation of all indigenous
rights and claims. But international law does not allow settlers to
treat native peoples as if they do not exist. The International Court
of Justice, holding that the Western Sahara was not terra nullius
(i.e., holding that it was not territory belonging to no one) when
it had been colonized by Spain in 1884, reported:
State practice of the
relevant period indicates that territories inhabited by tribes or
peoples having a social and political organization were not regarded
as terra nullius. It shows that in the case of such territories the
acquisition of sovereignty was not generally considered as effected
unilaterally through 'occupation' ... but through agreements concluded
with local rulers. [FN64]
C. CONQUEST THEORY
The theory of discovery
allowed whites to rationalize taking title to Indian
lands even when they recognized the natives' right to (at least temporarily)
be on the land which the settlers now claimed they owned. In the alternative,
the theory of conquest enabled the white colonies, and subsequently
authorities, to assert that they owned the land outright and could
expel the Indians practically at will. The idea was that, if the white
man fought a just war against the Indians and won, the white man got
the spoils of war, the rights of conquest, the
title in fee simple to the land. The problem is that this conquest
theory was frequently asserted following savage military actions in
which there was nothing just about the white man's cause. Grotius'
international law theory of just war, derived from ancient church
fathers, did not sanction conquest by aggressive war; this fact, however,
did nothing to slow the white man's conquest of Native American lands.
Emmerich de Vettel, an
eighteenth century authority on international law, denounced the white
settlers' conquest of Native American lands. He said Europeans who
"attacked the American Nations and subjected them to their avaricious
rule, in order, as they have said, to civilize them, *191 and have them instructed in the true
religion--those usurpers, I say, justified themselves by a pretext
equally inputs and ridiculous." [FN65]
The armed conquest
of Native American lands, attended by the decimation of tribal populations,
was a manifestation of not only material greed but also ethnic hate.
White warriors who massacred Indians generally did not dissent from
the widespread slaughters. Doubtless they approved because of their
conception that the Indians were inferior savages. The killers were
not merely Indian haters; they were believers in a form of exterminationist
D. No Remedy in the
Eight years after Marshall
propounded the "Indian title" rationalizations in M'Intosh, he announced in Cherokee Nation [FN67] that an individual state, unlike the
United States, could not assert any sovereignty over Indian lands.
The decision in Cherokee Nation reaffirmed the doctrine of discovery,
but made clear that unconquered Indian tribes nevertheless had not
yet lost all of the attributes of sovereign nations and were in fact
supposed to be protected by federal authority against any incursions
or claims by states. The decision was occasioned by the Cherokees'
challenge to statutes Georgia enacted in 1828 which purported to annex
the lands of the Cherokee Nation into five Georgia counties, voided
Indian contracts, provided guards for gold mines recently discovered
in Cherokee lands; and authorized the governor to take possession
of gold, silver and other mines.
Marshall noted in Cherokee
Nation that federal and Georgia authorities in 1802 agreed that the
U.S. government would "extinguish" the Cherokees' title
"so soon only as it could be done peaceably and on reasonable
terms," and that in the meantime all would
respect "the Indian boundary as arranged by the treaties"
and "the sovereignty of the Indians, and of their exclusive right
to give and to execute the law within that boundary." Marshall
also noted that "presidents Monroe and Adams, in succession ...
avowed their determination to protect these complainants *192 [the Cherokee Indians] by force if necessary,
and to fulfil the guarantee given to them
by the treaties." The state of Georgia
noted, though, that President Andrew Jackson asserted that he had
no power to protect the Indians against the laws of Georgia. [FN68]
Marshall wrote in Cherokee
Nation that the congressional act of 1830 provided for exchange of
lands with the Indians and for their removal west of the Mississippi,
that it "is to apply to such Indians as may choose to remove,
and ... nothing contained in the act shall be construed as authorising
or directing the violation of any existing treaty between the United
States and any of the Indian tribes." [FN69] The Chief Justice, who had overestimated
the savagery of the Indians in his M'Intosh
analysis, now underestimated the savagery of the federal authorities
under President Jackson. According to Marshall's
line of reasoning, it did not even matter that treaties had given
titles in fee simple [FN70] to the Cherokees.
The Cherokee Nation
decision recounted forgotten reality:
A people once numerous,
powerful, and truly independent, found by our ancestors in the quiet
and uncontrolled possession of an ample domain ... have
yielded the lands by successive treaties ... until they retain no
more of their formerly extensive territory than is deemed necessary
to their comfortable subsistence. [FN71]
Marshall's opinion for the court did not reach the question of whether the
acts of the Georgia
legislature, purporting to take Cherokee land and rights,
were violative of the U.S. Constitution.
While noting that "the Indians are acknowledged to have an unquestionable,
and, heretofore, unquestioned right to the lands they occupy,"
[FN72] and indicating that the decision would
be for the Cherokees if the "courts were permitted to indulge
their sympathies," [FN73] Marshall concluded that the court lacked
jurisdiction. Asserting that the tribe is neither a "foreign
nation" nor a state, Marshall
reasoned that the courts could not hear the Cherokees' case. [FN74] Thus, although Georgia acted unconstitutionally to
deprive the Cherokees of land and rights, the federal jurists took
the position that no judicial remedy could be obtained. Marshall's
1831 opinion denied the *193 Cherokees' request for an injunction
and concluded, ominously: "If it be true that wrongs have been
inflicted, and that still greater are to be apprehended, this is not
the tribunal which can redress the past or prevent the future."
The racialist views
that existed at the time were revealed in the concurring opinion of
Justice Johnson in Cherokee Nation: "Independently of the general
influence of humanity, these people were restless, warlike, and signally
cruel ... and it was probably wise to prepare them ... to incorporate
them in time into our respective governments: a policy which their
inveterate habits and deep seated enmity has altogether baffled."
But the proposition
that the Cherokees were not a foreign nation was refuted by the eloquent
dissent of Justice Thompson:
The circumstance of
their original occupancy is here referred to, merely for the purpose
of showing, that if these Indian communities were then, as they certainly
were, nations, they must have been foreign nations, to all the world;
not having any connection, or alliance of any description, with any
other power on earth. And if the Cherokees were then a foreign nation;
when or how have they lost that character, and ceased to be a distinct
people, and become incorporated with any other community?
They have never been,
by conquest, reduced to the situation of subjects to any conqueror,
and thereby lost their separate national existence, and the rights
of self government, and become subject to the laws of the conqueror.
When ever wars have taken place, they have been followed by regular
treaties of peace, containing stipulations on each side according
to existing circumstances; the Indian nation always preserving its
distinct and separate national character. And ... the right of occupancy
is still admitted to remain in them, accompanied by the right of self
government, according to their own usages and customs; and with the
competency to act in a national capacity, although
placed under the protection of the whites, and owing a qualified subjection
so far as is requisite for public safety. But the principle is universally
admitted, that this occupancy belongs to them as a matter of right,
and not by mere indulgence. They *194 cannot be disturbed in the enjoyment of it, or deprived of it, without
their free consent; or unless a just and necessary war should sanction
their dispossession. [FN77]
The inverse of the
doctrine of "Indian title" would be the conception that
it was white settlers who became mere occupants on what was rightfully
the Indians' land. Then "white title" would be the colonists',
somewhat analogous to the Cold War claims of Kremlin agents in far-flung
vassal "republics" of the old Soviet
According to Henkin, a state does not cease to be a state because it is
occupied by a foreign power .... Thus, Kuwait remained a state notwithstanding its occupation
and putative annexation by Iraq in 1990. The United States never
recognized the incorporation of Estonia, Latvia and Lithuania into
the U.S.S.R. [FN78]
Marshall in Cherokee
It is the political
relation in which one government or country stands to another, which
constitutes it foreign to the other. The Cherokee territory being
within the chartered limits of Georgia,
does not affect the question
.... [I]t is not perceived that any absurdity or inconsistency
grows out of the circumstance, that the jurisdiction and territory of the state
surround or extend on every side of the Cherokee territory. It may
be inconvenient to the state, and very desirable, that the Cherokees
should be removed; but it does not at all affect the political relation
between Georgia and those Indians. Suppose the Cherokee territory
had been occupied by Spaniards or any other civilized people, instead
of Indians, and they had from time to time ceded to the United States
portions of their lands precisely in the same manner as the Indians
have done, and in like manner retained and occupied the part now held
by the Cherokees, and having a regular government established there:
would it not only be considered a separate and distinct nation or
state, but a foreign nation, with reference to the state of Georgia
or the United States. If we look to lexicographers, as well as approved
writers, *195 for the use of the term foreign, it may be applied with the strictest
propriety to the Cherokee nation. [FN79]
Cherokee Nation dissent noted that the sovereignty of Indian nations
was persuasively explained by Chancellor Kent
in a New York case, Jackson v. Goodel,
20 Johns. 193, where the citizenship of an Oneida Indian was at issue:
That Oneidas, he observed,
and the tribes composing the six nations of Indians, were originally
free and independent nations, and it is for the counsel
who contend that they have now ceased to be a distinct people and
become completely incorporated with us, to point out the time when
that event took place .... Still they are permitted to exist as distinct nations,
and we continue to treat with their sachems in a national capacity,
and as being the lawful representatives of their tribes
.... No argument can be drawn against the sovereignty of these
Indian nations, from the fact of their having put themselves and their
lands under the protection of the British crown: such a fact is a
frequent occurrence between independent nations. One community may
be bound to another by a very unequal alliance, and still be a sovereign
state. Vat. B. 1, ch. 16, section 194. [FN80]
The year after the
Marshall court denied the Cherokees' request for an injunction
from enforcing the state's anti-Indian statutes,
it used another case to strike down the same statutes as repugnant
to the U.S. Constitution. Although the high court had found in Cherokee
Nation that the Indians lacked standing to sue in federal court, it
found in Worcester v. Georgia, 31 U.S. 515
(1832), that a Christian missionary from Vermont,
convicted on a state charge of being on Cherokee land without a state
license, did have standing. In Worcester,
the court reaffirmed the M'Intosh "Indian
title" theory of diminished Native American land rights, but
it held unconstitutional the far-reaching Georgia statutes that took the property
and liberty of Cherokee people.
However, the announcement of the decision in Worcester, though initially
celebrated as a victory for justice, [FN81] was not followed by redress of grievances.
On the contrary, the decision was ignored not only by the states but
also by the political branches of the federal government. The *196 high court had no army to enforce its
will. And the atrocities escalated across the United States, as willing
executioners unleashed by Andrew Jackson waged a genocidal campaign
that was to take the lands and lives of Indian people.
Author William C. Canby,
Jr. wrote in 1988:
President Jackson probably
did not make the statement about the decision that is popularly attributed
to him: 'John Marshall has made his decision; now let him enforce
it,' but there is little question that the decision was not popular
with the Jacksonians who were anxious to hasten the exodus of the tribes
from lands east of the Mississippi. In the end, however, those favoring
removal had their way. All but a few remnants of tribes east of the
Mississippi were moved
to the West under a program that was voluntary in name and coerced
in fact. The journeys were often attended with extreme hardship and
some became virtual symbols of imposed suffering, such as the Trail
of Tears by the Five Civilized Tribes (Cherokee, Choctaw, Creek, Chickasaw
and Seminole) from the Southeast to what is now Oklahoma.
The genocidal policy
continued for the greater part of the nineteenth century.
A famed general stated that exterminating the Indians was the only
way to keep them from becoming government-supported paupers; [FN83] the inhumanity of the statement attributed
to General William Tecumseh Sherman was an ironic affront to his own
name, but it reflected the violent racism of the era.
E. MIXED RESULTS IN
Indians' land rights
had been devastated by the M'Intosh theories
of "Indian title," discovery, and conquest. Native rights
were further eroded in 1903 when the Supreme Court decided Congress
had "plenary power" to take the lands and evict the Indians
without compensation. In Lone Wolf v. Hitchcock, [FN84] the high court upheld the taking of two
million acres of Apache, Comanche and Kiowa lands in Oklahoma, even
though the record showed the takings were the product of years of
fraud and misrepresentation by agents of the United States. The taking
was lawful, the high court found, because it was approved by Congress,
whose power *197 to take from the Indians is unbridled.
The court's Lone Wolf decision conceded that, in M'Intosh
and its progeny, "the Indian right of occupancy ... has been
stated to be ... as sacred as the fee of the United
States in the same lands." But
it distinguished Lone Wolf because "in none of those cases was
there involved a controversy between Indians and the government respecting
the power of Congress to administer the property
of the Indians." The power to administer, according to the Lone
Wolf theory, is the power to annihilate.
The high court in Lone
Wolf said it "presumed" that Congress, in exercising this
unlimited power over Indians, "would be governed by such considerations
of justice as would control a Christian people in their treatment
of an ignorant and dependent race." It is ironic that Christianity
was evoked by the discoverers who took Indian land, and by the first
Supreme Court which sanctioned the early, incomplete takings, and
then was attributed to the Congress which consummated a plenary power
to take without any need to compensate or justify. "Be that as
it may," the court said in Lone Wolf, "the propriety or
justice of their action towards the Indians with respect to their
lands is a question of governmental policy .... Plenary authority
over the tribal relations of the Indians has been ... political ...
not subject to be controlled by the judicial department of the government."
Congress, the court added, is just as free to trample Indian rights
as it is to violate treaties with foreign nations. [FN85] The Lone Wolf decision did not address
due process, the Takings clause, or the international obligations
of the United States.
A new and different
outcome occurred in a 1946 Supreme Court decision that required compensation
for lands taken from Indian tribes in Oregon.
In United States v. Alcea Band of Tillamooks,
[FN86] the court decided that, although the federal taking itself was a nonjusticiable
political question, there was nonetheless a cause of action arising
from the involuntary taking of lands held by original Indian title.
Without referring to the Takings clause, the high court said that
"taking original Indian title without compensation and without
consent does not satisfy the 'high standards for fair dealing' required
of the United States in controlling Indian
affairs. United States v. Santa Fe R. Co.,
1941, 314 U.S. 339, 356" [FN87] Dissenting, Justice Reed, joined by Justices
Rutledge and Burton, saw peril, opening floodgates to litigation:
"It is difficult to foresee the result of this ruling in the
consideration of claims by Indian tribes against *198 the United States. We do not know the
amount of land so taken. West of the Mississippi
it must be large .... [C] harges of unfair dealings may open up to consideration
again legal or equitable claims for taking aboriginal lands."
real property claims generally are at the mercy of Congress, subject
to a fairness standard that may depend on the degree of deference
the Supreme Court decides to show to the legislative branch in a particular
IV. THE TAKING OF THE
CONTINENT VIOLATED BINDING TREATIES, CUSTOMARY INTERNATIONAL LAW AND
THE U.S. CONSTITUTION
The Constitution places
the power to make treaties in the president and
the senate, [FN89] and authorizes the judicial branch to
decide cases arising under treaties. [FN90] Congress in 1871, during a period of
violent anti-Indian sentiment, enacted a statute which said no Indian
tribe could any longer be recognized as an independent nation with
which the United States
could enter into a treaty, but that existing treaties would not be
affected; that law, 25 U.S.C.A. section
71, is still on the books.
That the Constitution's
Treaty clause was meant to recognize the sovereign nationhood of Indian
tribes is demonstrated, in this author's view, by the fact that the
contemporaries of the Framers, those who were involved directly or
indirectly in the process of ratification, understood it to be so.
To be sure, the American Constitution is dynamic and its application
must adapt to the needs of changing times. But the true meaning of
its fundamental concepts is better discerned from the understanding
of the ratifiers than from the memory lapses
of jurists and lawmakers a century or two later. [FN91]
*199 The Treaty clause provides that the president
"shall have power, by and with the advice and consent of the
senate to make treaties, provided two thirds of the senators present
concur." [FN92] The clause does not distinguish treaties
made with Indian nations from treaties made with any other categories
of nations. Therefore, the fact that the Framers and ratifiers
of the Constitution understood the clause to apply to Indian nations
exactly the same as it applied to other nations is demonstrated by
the consistent practice of the young United States,
in the early decades of our national existence, of: (a) negotiating
treaties with long-established Indian nations, and (b) ratifying the
pacts by a two-thirds vote of the senate in exactly the same manner
as was followed in respect to treaties with non-Indian nations such
as England and France.
Cherokee Nation dissent pointed to the Hopewell
treaty of 1785 as but one illustration of the U.S. practice of concluding treaties
with the Indians. That treaty settled boundary lines between the Cherokee
Nation and the United
States, and provided, inter alia,
for prisoner exchanges and the extradition of fugitives. Thompson
asked, "What more explicit recognition of the sovereignty and
independence of this nation could have been made? It was a direct
acknowledgement, that the territory was under
a foreign jurisdiction." And he noted that provisions of Indian
treaties were the same as provisions in treaties with non-Indian nations
[FN93] Similarly, Chief Justice Marshall in
Worcester cited the Holston treaty of 1791
as an international agreement between the United States and the Cherokees:
"This relation was that of a nation claiming and receiving the
protection of one more powerful: not that of individuals abandoning
their national character, and submitting its subjects to the laws
of a master." [FN94]
As Justice M'Lean wrote, concurring in the 1832 Worcester decision, "After a lapse of more than forty years since
treaties with the Indians have been solemnly ratified by the general
government, it is too late to deny their binding force." [FN95]
A. LAW OF NATIONS AND
SUPREMACY CLAUSES VIOLATED
The Constitution recognizes
the law of nations, for it expressly empowers Congress to define and
punish offenses against it. [FN96] Ever *200 since the founding of the United States,
federal and state courts have always treated customary international
law as incorporated into U.S. law. International law passed on from
the law of England to the American colonies and thence to
the United States.
law, which includes our Constitution and treaties, is the supreme
law of the land. [FN97]
Prior to the voyage
of Christopher Columbus, Indian nations were, as discussed above,
sovereign states equal in status to any other states in the world
under international law. But Indian sovereignty was ravaged in practice
by papal bulls, royal charters, colonial aggressions and later, by
corrosive U.S. Supreme Court decisions and anti-Indian policies of
the states and the political branches of the federal government.
Hence, this author
believes the conclusion is inescapable that the American Indian lands
were taken unjustly, in violation of norms of law and morality. The
law was manipulated to make it all ultimately legal. But in the name
of humanity we must recognize the truth,
that we live on their land.
Marshall, in Worcester,
addressed the Supremacy clause in its application to Indian treaties:
The constitution, by
declaring treaties already made, as well as those to be made, to be
the supreme law of the land, has adopted and sanctioned the previous
treaties with the Indian nations, and consequently admits their rank
among those powers who are capable of making treaties. The words 'treaty' and
'nation' are words of our own language, having each a definite and
well understood meaning. We have applied them to Indians, as we have
applied them to the other nations of the earth. They are applied to
all in the same sense. [FN98]
B. COMMERCE CLAUSE
Marshall's dicta in
Cherokee Nation discussed whether the Commerce clause, empowering
Congress to "regulate commerce with foreign nations, and among
the several states, and with the Indian tribes," [FN99] indicates whether the tribes were deemed
to be nations. He concluded: "The court has bestowed its best
attention on this question, and, after *201 mature deliberation, the majority is
of the opinion that an Indian tribe or nation within the United States
is not a foreign state in the sense of the constitution, and cannot
maintain an action in the courts of the United States." [FN100] But this reading of the commerce clause did
not take into account the practice of the Framers and ratifiers
of the Constitution, who consistently treated the Indian tribes as
foreign nations. Nor did it consider the fact that the Framers and
ratifiers would not have intended to deny
their Indian friends all access to the federal court system. Further,
it did not address how the Framers, whether intending to do so or
not, could have taken away, by a stroke of the pen, the previously
acknowledged sovereignty of independent nations of Indians.
C. TAKINGS CLAUSE VIOLATED
The Takings clause
of the Fifth Amendment bars governmental taking of private property
for public use without just compensation. [FN101] As we have seen, the Supreme Court has not paid attention to the
Takings clause in cases involving the public taking of Indian lands.
[FN102] Instead, the court has sometimes applied a more
vague concept that some compensation is required by the congressional
duty of fair dealing with the Indian tribes. But a logical case can
be made that the Takings clause standard should be applied when the
government in fact has taken Native American lands for public purposes.
After all, there is nothing in the Constitution to suggest that Indians
are so inferior as to be inherently denied the protection promised
by the Takings clause to all owners of private property.
D. CONTRACTS CLAUSE
The Contracts clause
[FN103] prohibits state impairment of contracts. It does not appear to have
direct application to Indian tribes, which are held to be constitutionally
immune from state regulation and subject only to federal law. Ironically,
though, the first Contracts clause case heard by the U.S. Supreme
Court, Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810), laid the groundwork for the M'Intosh
line of cases that gave a constitutional excuse for the taking of
Native American lands. Fletcher sought to annul Georgia's conveyance of land to Peck's
predecessors in interest. Fletcher argued that a royal proclamation
in 1763 had *202 confirmed Indian tribes' full title in that land, with the result
that the state could not later convey it. The high court ruled for
Peck on the issue. Chief Justice John Marshall, finding that the tribes
held only a limited interest, wrote for the high court: "[T]he
Indian title which is certainly to be respected by all courts, until
it be legitimately extinguished, is not ... absolutely repugnant to
seisin in fee on the part of the state."
[FN104] Laurence Tribe has noted that the Fletcher decision, a characteristic
Marshall compromise, "set the
course" for Marshall's
later decisions denying that Indians could have full ownership of
their land. [FN105] The term Indian title was introduced to signify a kind of limited
title, a right of possession or occupancy that was expected, in due
time, to be extinguished.
E. FIFTH AMENDMENT
DUE PROCESS CLAUSE
Literature and jurisprudence
derived from the Due Process clause are very extensive. But there
is little or no attention devoted to due process in major Supreme
Court cases involving the taking of Native American property. The
clause in the Fifth Amendment expressly provides, "No person
shall ... be deprived of life, liberty, or property, without due process
of law." [FN106] The substantive and procedural due process protections provided
to American Indians should be no less than those assured to all persons
by the Constitution.
V. CONCLUSION AND RECOMMENDATIONS:
NEW U.S. POLICIES
SHOULD HONOR THE CONTRIBUTIONS AND RESTORE THE RIGHTS OF THE INDIANS
The taking of America
involved the most extensive land fraud and the largest holocaust in
world history. Chief Justice John Marshall used international law
doctrines of discovery and conquest to rationalize white supremacist
usurpation of Indian nation sovereignty, even while conceding that
the great injustice may have violated international law principles.
Later Supreme Court decisions and policies of the political branches
further ravaged Native Americans' land rights. The Framers of the
Constitution had been profoundly inspired by their many Indian friends,
but in the Jackson
era federal troops and ragtag racists ran roughshod
over the Indians, their land and the law. The vast frauds and atrocities
were committed by avowed Christians in the name of a religion *203 that unequivocally condemns stealing
and violence. Now the surviving remnants of Native American tribes
are the most neglected and mistreated ethnic group. Now creative remedies
can be fashioned to restore honor to Indian nations and to the United States of America.
Today some 1.5 million
Native Americans live on 300 reservations covering more than 52 million
acres in 27 states. [FN107] They have the worst poverty levels--and shortest life expectancies--of
any ethnic group in the United States; [FN108] the toll of the American holocaust, thus continuing still, must
As we have seen, early
decisions of the U.S. Supreme Court pronounced by Chief Justice John
Marshall lamented the injustices done to the Native American Indians
and the legally questionable means by which land rights were wrested
from them. Marshall's rationalizations
were followed by generations of court decisions, executive orders,
acts of Congress, army expeditions and mob acts of avarice and violence
that left almost all the Native Americans dead and almost all their
property in white hands. Throughout U.S.
history, elected officials have proclaimed policies of fairness and
protection toward the Indians who, in the course of it all, have lost
their sovereignty, their rights and their sacred lands. Jurists and
politicians have been aware of the tragic betrayals, but
have never felt they had the capacity to act to bring justice to Indian
people. With the dawn of a new millenium, it is high time for America to take specific, practical
steps to make up, so far as can be done now, for some of the unspeakable
harm that has been wrought against the Indians, on whose land we live.
The federal district
judge who decided the Wounded Knee Cases [FN109] in 1975 found that he was unable to dismiss criminal charges against
approximately 65 Indians who were prosecuted in connection with events
that allegedly took place on the Pine Ridge Indian Reservation, South
Dakota. But he used his opinion in those consolidated cases to proclaim
that the injustices done to Native Americans are of such vast and
historic proportions that they are beyond the scope of competency
of the federal judiciary. While deciding that the Sioux treaty of
1868 did not protect these defendants from federal prosecution, Chief
Judge Urbon *204 cried out for the American people and
their elected leaders to wake up and finally do something about the
way the Indians have been treated. The chief judge wrote:
The Sioux people were
once a fully sovereign nation. They are not now and have not been
for a long time. Whether they ever will be again is dependent upon
actions of the Congress and the President of the United States and not of the courts.
There is a residue of sovereignty, however ....
It cannot be denied that official policy of the United States until at least the late 19th century was impelled by a resolute will to control
substantial territory for its westward-moving people. Whatever obstructed
the movement, including the Indians, was to be--and was--shoved aside,
dominated, or destroyed. Wars, disease, treaties pocked by duplicity,
and decimation of the buffalo by whites drove the Sioux to reservations,
shriveled their population and disemboweled their corporate body.
They were left a people unwillingly dependent in fact upon the United States.
It is an ugly history.
White Americans may retch at the recollection of it.
They may also ask themselves
questions: How much of the sins of our fore- fathers must we rightly
bear? What precisely do we do now? Shall we pretend that history never
was? Can we restore the disemboweled or push the waters of the river
upstream to where they used to be?
Who is to decide? White Americans? The Native Americans?
All, together? A federal
Who speaks for the
Sioux? Those traditional people who testified here? Those
Sioux of a different mind who did not testify? The officials
elected by the Sioux on the eight reservations?
Feeling what was wrong
does not describe what is right. Anguish about yesterday does not
alone make wise answers for tomorrow. Somehow, all the achings
of the soul must coalesce *205 and with the wisdom of the mind develop a single national policy
for governmental action. [FN110]
Judge Urbom observed that (a) elected officials
are "more likely to reflect the conscience and wisdom of the
people" than appointed judges; (b) Congress has investigative
tools which the courts lack; (c) "relations with American Indians
are rooted in international relations," an arena better suited
to the political branches; and (d) the Constitution has placed relations
with Indian tribes in the province of presidential and congressional
power. [FN111] Noting that the U.S. Supreme Court had reduced the sovereignty of
the Indian nations, Judge Urbom said: "When
the Supreme Court speaks clearly, I must honor the statement or be
as unfaithful to my duty to the law as the United
States has been to its promises to
the American Indians." He also expressed his hope that the Wounded
Knee hearing would "serve to make the citizenry of the United
States more aware and more willing to grapple with the hard decisions
that need to be made." [FN112]
A. RENEWAL OF NATIONHOOD
Justice would be served
if Indian nationhood could be restored and Indians allowed the opportunity
to make real the dream of Crazy Horse: "We would live as our
fathers did, and their fathers before them." [FN113]
The numerosity argument against Indian nationhood--that it would
be troublesome to have to treat each tribe as a nation because there
are too many of them--was presented by the concurring opinions of
Justices Johnson and Baldwin in Cherokee Nation.
Johnson wrote: "Where is the rule to stop? Must every petty kraal
of Indians, designating themselves a tribe or nation, and having a
few hundred acres of land to hunt on exclusively, be recognized as
a state? We should indeed force into the family of nations, a very
numerous and very heterogeneous progeny." [FN114] Baldwin feared that "if one
is a foreign nation or state, all others in like condition must be
so ... and each of their subjects capable of suing in the circuit
courts. This case then is the case of countless tribes, who...as states
or aliens, will rush to the federal courts in endless controversies,
growing out of the laws of states or congress." [FN115] The *206 inequity of the Cherokee Nation decision, denying a federal injunction
for want of jurisdiction where Georgia by force of arms stole Indian
land and gold, is an historic fact. So is the later act of Congress
that gave Indians the right to sue in federal courts, a reform whose
happy exercise has refuted Justice Baldwin's fear of floodgates open
to an unmanageable volume of Indian litigation.
Steven Paul McSloy asked whether the self-determination principles that
allow sovereignty and United Nations membership to Saint Kitts and
Nevis (139 square miles, 54,775 people), Liechtenstein (62 square
miles, 27,074 people), and San Marino (23 square miles, 22,791 people),
to name just a few, should apply to the Navajo (166,000 people), the
Lumbee (50,000 people), the Cherokee (42,992
people) ... and other Indian peoples, who in the aggregate still own
52,500,000 acres of land in the contiguous United
States, an additional 44,000,000 acres in Alaska, and potentially
millions of additional acres presently the subject of land claim litigation.
The present author
recommends that a practical solution to the numerosity
problem would be to form agreements whereby the larger Native American
Indian nations would have the opportunity to be seated in the United
Nations, while smaller ones could join together, if they wished, in
confederations, which could be seated in the world organization. But
the fact that a state is small should not necessarily exclude it from
admission to the family of nations.
Justice Johnson also
presented the circular argument that the Cherokee Nation could not
be recognized as a nation because it lacked power to sell or transfer
its land without the consent of the United
States. He compared the Cherokees
to small European nations: "They have in Europe
sovereign and semi-sovereign states and states of doubtful sovereignty.
But this state, if it be a state, is still a grade below them all:
for not to be able to alienate without permission of the remainder-man
or lord, places them in a state of feudal dependence." [FN117] The argument is circular because it was the United States' predecessors in interest
who took away the Indians' sovereign power to alienate the land; this
power was taken away without the Indians' knowledge or consent, in
violation of international law. Fortunately, since Johnson's assertions
were in a *207 concurring opinion, his implication that
authorities are feudal lords is without legal
Justice Johnson's concurring
opinion in Cherokee Nation unwittingly provided a powerful argument
in favor of belated renewal of Indian sovereignty when he analogized
the Cherokees to the Jews:
However, I will enlarge
no more upon this point; because I believe, in one view and in one
only, if at all, they are or may be deemed a state, though not a sovereign
state, at least while they occupy a country within our limits. Their
condition is something like that of the Israelites, when inhabiting
the deserts. Though without land that they can call theirs in the
sense of property, their right of personal and self-government has
never been taken from them; and such a form of government may exist
though the land occupied be in fact that of another. The right to
expel them may exist in that other, but the alternative of departing
and retaining the right of self- government may exist in them. And
such they certainly do possess; it has never been questioned, nor
any attempt made at subjugating them as a people, or restraining their
personal liberty except as to their land and trade. [FN118]
Although Justice Johnson
apparently did not appreciate the significance of the whites' taking
of Indian lands, and did not intend to offer any argument in favor
of full sovereignty for Indian nations, his analogy to the Jews of
Palestine can help us to see more clearly the justification and practical
possibility of recognizing Indian sovereignty.
More than a century after Johnson's concurrence in Cherokee Nation,
the state of Israel was born and accepted into
the community of nations. If the survivors of the Holocaust, in which
six million perished, could be allowed to return to their homeland
and declare their independence, this author recommends that a similar
procedure should be allowed for the descendants of those who survived
the American holocaust.
Advocating the admission
of Israel to the United Nations, Philip C. Jessup, the United States
representative to the Security Council, recited the well- accepted
constitutive theory of statehood; the elements are a *208 people, a territory, a government, and
a capacity to enter into relations with other states. [FN119]
Vine Deloria, Jr. wrote: "[W]ho is to say that Indians cannot
regain their independence in the future? Can one view the re-creation
of the state of Israel,
after two thousand years of exile and seriously maintain that the
Oglala Sioux will never ride their beloved plains as rulers
of everything they see? ... If the U.S. can recognize the historic
claim of a specific people to land in the Middle East, there is no
reason in fact or law to continue to ignore the claim of the native
Americans to territorial sovereignty over a small portion of their
historic land." [FN120] After all, as Susan Lope has pointed out, "Native Americans
... exist today as independent cultures, with their
own religions, languages and governments." [FN121]
B. INTERNATIONAL INSTRUMENTS
The United States should
give consideration to taking a positive approach toward international
law instruments that support the rights of indigenous peoples. Thus,
wherever practical, the United
States should employ its voice and
its vote in international forums in support of implementation of the
human rights provisions of these instruments. These include the 1977
Geneva Draft Declaration of Principles for the Defense of the Indigenous
Nations and Peoples of the Western Hemisphere ("Indigenous peoples
shall be accorded recognition as nations ...." art. 1); the 1984
Panama Declaration of Principles of Indigenous Rights ("Indigenous
people shall have exclusive rights to their traditional lands ...."
Principle 9); the 1987 Geneva Declaration of Principles on the Rights
of Indigenous Peoples ("Indigenous nations and peoples are entitled
to the permanent control and enjoyment of their aboriginal ancestral-
historical territories." art. 4); the 1991 Geneva Convention
Concerning Indigenous and Tribal Peoples in Independent Countries
("The rights of ownership and possession of the peoples concerned
over the lands which they traditionally occupy shall be recognized."
art. 14, para. 1); and the 1995 Draft of
the Inter-American Declaration on the rights of Indigenous peoples
("... in many indigenous cultures, traditional collective systems
for control and use of land and *209 territory ... are a necessary condition
for their survival ... and collective well-being." Preamble,
para. 6). [FN122]
A high-level, broad-based commission should be established to conduct
a serious public study of the feasibility of restoring Indian nationhood
within practical boundaries. The President of the United States should appoint Indians
and non-Indians, lawyers and non-lawyers, lawmakers and citizens,
historians and futurists to the commission. The members should be
people of diverse philosophies and faiths who share a commitment to
human rights, an understanding of international affairs, and an open-minded
willingness to seek practical compromise.
The State Department should conduct a review of United States obligations with respect
to Native Americans under international human rights law. In the meantime,
responsible agencies should redouble efforts immediately to improve
health, education and welfare standards for Indian people.
And let all Americans learn the history and treasure the culture
of the Indians. Let us express our remorse for the betrayals of the
past, and begin the millenium with a vow
to honor the people of all nations.
Then we shall be reconciled with the descendants of those who welcomed
our forebears to the land of the free.
Member, The State Bar of California, American Bar Association, National
Lawyers Guild, and International Bar Association; B.S.F.S., Georgetown
University School of Foreign Service; M.S., Boston University School
of Public Communication; J.D., John F. Kennedy University School of
Law; Class of 2000, LL.M. Program in International Legal Studies,
Golden Gate University School of Law.
JOSEPH WILLIAM SINGER, PROPERTY LAW: RULES, POLICIES, AND PRACTICES
Louise Erdrich, Where I Ought to Be: A Writer's
Sense of Place, N.Y. TIMES BOOK REV. I, 23 (July 18, 1985).
BIL GILBERT, GOD GAVE US THIS COUNTRY: TAKAMTHI AND THE FIRST AMERICAN
CIVIL WAR 25 (1990).
Quoted by ROBERT F. HEIZER, THE DESTRUCTION OF CALIFORNIA INDIANS 35, 36 (1974).
BRUCE E. JOHANSEN, FORGOTTEN FOUNDERS: BENJAMIN FRANKLIN, THE IROQUOIS
AND THE RATIONALE FOR THE AMERICAN REVOLUTION 4-8 (1982).
S. JAMES ANAYA, INDIGENOUS PEOPLES IN INTERNATIONAL
LAW 10 (1996).
FRANCISCO DE VICTORIA, DE INDIS ET DE IVRE BELLI RELECTIONES (Classics
of International Law Series, 1917) (translation by J. Bate based on
Iaques Boyer, ed., 1557, Alonso Munoz, ed., 1565, & Johann
G. Simon, ed., 1696) (using the Latin version of his name, "Victoria").
Id. at 139.
ANAYA, supra note 6, at 10-11 (1996).
HUGO GROTIUS, THE LAW OF WAR AND PEACE 397 (Classics
of International Law ed. 1925).
Cherokee Nation v. Georgia, 30 U.S. 1 (1830), 16: "Is the
Cherokee nation a foreign state in the sense in which that term is
used in the constitution?
They have been uniformly treated as a state from the settlement of
our country. The numerous treaties made with them by the United States recognize them
as a people capable of maintaining the relations of peace and war,
of being responsible in their political character for any violation
of their engagements, or for any aggression committed on the citizens
of the United States
by any individual of their community. Laws have been enacted in the
spirit of these treaties. The acts of our government plainly recognize
the Cherokee nation as a state, and the courts are bound by those
Marshall continued on the next page: "The Indian territory is admitted
to compose a part of the United States .... They may ... be
denominated domestic dependent nations. They occupy a territory to
which we assert a title independent of their will
.... Meanwhile they are in a state of pupilage. Their relation
to the United States resembles that of a
ward to his guardian."
Worcester v. Georgia, 31 U.S. 515, 542-543 (1832). America, separated from Europe
by a wide ocean, was inhabited by a distinct people, divided into
separate nations, independent of each other and of the rest of the
world, having institutions of their own, and governing themselves
by their own laws. It is difficult to comprehend the proposition,
that the inhabitants of either quarter of the globe could have rightful
original claims of dominion over the inhabitants of the other, or
over the lands they occupied; or that the discovery of either by the
other should give the discoverer rights in the country discovered,
which annulled the pre-existing rights of its ancient possessors.
"After lying concealed for a series of ages, the enterprise
of Europe guided by nautical science,
conducted some of her adventurous into this western world. They found
it in possession of a people who had made small progress in agriculture
or manufactures, and whose general employment was war, hunting, and
"Did these adventurers, by sailing along the coast, and occasionally
landing on it, acquire for the several governments to whom they belonged,
or by whom they were commissioned, a rightful property in the soil,
from the Atlantic to the Pacific; or rightful dominion over the numerous
people who occupied it? Or has nature, the great Creator of all things,
conferred these rights over hunters and fishermen, on agriculturalists
"But power, war, conquest, give rights, which, after possession,
are conceded by the world; and which can never be controverted by those on whom they descend."
Id. at 545.
Id. at 545-548, 553.
at 515, 543-560.
Cherokee Nation, supra note 11, at 52-54: "The terms state and
nation are used in the law of nations, as well as in common parlance,
as importing the same thing; and imply a body of men, united together,
to procure their mutual safety and advantage by means of their union.
Such a society has its affairs and interests to manage; it deliberates,
and takes resolutions in common, and thus becomes a moral person,
have an understanding a will peculiar to itself .... Vattel, 1. .... Every nation that governs itself, under what form
soever, without any dependence on a foreign power, is a sovereign
state. Its rights are naturally the same as those of any other state.
Such are moral persons who live together in a natural society, under
the law of nations. It is sufficient if it be really sovereign and
independent; that is, it must govern itself by its own authority and
laws .... Tributory
and feudatory states do not thereby cease to be sovereign and independent
states, so long as self- government, and
sovereign and independent authority is left in the administration
of the state. Vattel, c.1, pp. 16, 17.
"Testing the character and condition of the Cherokee Indians
by these rules, it is not perceived how it is possible to escape the
conclusion, that they form a sovereign state. They have always been
dealt with as such by the government of the United States; both before and since
the adoption of the present constitution. They have been admitted
and treated as a people governed solely and exclusively by their own
laws, usages, and customs within their own territory, claiming and
exercising exclusive dominion over the same; yielding up by treaty,
from time to time, portions of their land but still claiming absolute
sovereignty and self government over what remained unsold. And this
has been the light in which they have, until recently, been considered
from the earliest settlement of the country by the white people. And
indeed, I do not understand it is denied by a majority of the court,
that the Cherokee Indians form a sovereign state according to the
doctrine of the law of nations; but that, although a sovereign state,
they are not considered a foreign state within the meaning of the
supra note 12, at 549.
Cherokee Nation, supra note 11, at 65-66.
Id. at 71.
Id. at 66.
supra note 12, at 582.
Johnson v. M'Intoch,
21 U.S. 543 (1823).
LOUIS HENKIN ET AL, INTERNATIONAL LAW: CASES AND MATERIALS 149 (3d
U.S. Foreign Rel. 751, 573 (1887), quoted in Id.
John Westlake, Chapters on the Principles of International Law 1,
136-145 (1894), cited by ANAYA, supra note 6, at 20.
Restatement (Third) of Foreign Relations Law of the United States,
§ 102, comment d, quoted by Henkin et
al., supra note 24, at 88 n.1 (1993).
Alvin M. Josephy, Jr., The
Indian Heritage of America
Quoted by Irvin M. Pithmann, Broken Peace
Pipes: A Four-Hundred-Year History of the American Indian 32 (1964).
Hugo Grotius, supra note 10.
Steven T. Newcomb, "The Evidence of Christian Nationalism in
Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntoch,
and Plenary Power," XX Rev. of Law and Social Change 311.
Francisco de Victoria, supra note 7.
Johnson v. M'Intosh, supra note
23, at 543.
Id. at 574.
Id. at 590.
Id. at 584.
Id. at 591.
Id. at 591.
Id. at 588.
Id. at 591.
Id. at 589.
Id. at 543.
Id. at 586.
Id. at 590.
Id. at 589.
Id. at 590.
Id. at 673.
Id. at 574.
Id. at 591.
Cherokee Nation, supra note 11, at 48.
Class notes in author's possession: Andrew Lichterman,
Real Property Law lecture, John F. Kennedy University School of Law
(Walnut Creek, Calif., August 28, 1995).
Declaration of Religious Freedom (Dignitatis
I, in Walter M. Abbott, S.J., ed., Very Rev. Msgr. Joseph Gallagher,
trans. ed., The Documents of Vatican II (1966), 681:
"On his part, man perceives and acknowledges the imperatives
of the divine law through the mediation of conscience. In all his
activity a man is bound to follow his conscience faithfully, in order
that he may come to God, for whom he was created. It follows that
he is not to be forced to act in a manner contrary to his conscience.
Nor, on the other hand, is he to be restrained from acting in accordance
with his conscience, especially in matters religious."
Hugo Grotius, supra note 10, at 550.
Island of Palmas Case, 2 U.N. Rep. Int'l Arb. Awards 829
(1928), in Henkin et al, International Law,
supra note 24, at 309.
Joseph Story, A Familiar Exposition of the Constitution of the United
States 13-14 (1859), quoted by Steven T. Newcomb, supra note 23, at
316- 317 n. 84.
Western Sahara Case, 1975 I.C.J. 12, 39, quoted by Gordon Bennett, Aboriginal Rights in International Law 5 (1978).
Emmerich de Vattel,
The Law of Nations, or The Principles of Natural Law, Charles G. Fenwick
trans. of 1758 ed. 116 (1916).
Cf. Daniel Jonah Goldhagen, Hitler's Willing
Executioners: Ordinary Germans and the Holocaust 416 (1996): "That
the perpetrators approved of the mass slaughter, that they willingly
gave assent to their own participation in the slaughter, is certain.
That their approval derived in the main from their own conception
of Jews is all but certain, for no other source of motivation can
plausibly account for their actions."
Cherokee Nation, supra note 11.
Id. at 9.
See M'Lean dissent in Worcester, supra note 12 at 587.
Cherokee Nation, supra note 11, at 15.
Id. at 17.
Id. at 15.
Id. at 20.
2 FOREIGN POL'Y BULL. 33, no. 2 (Sept./Oct.
Cherokee Nation, supra note 11, at 55-56.
Quoted by Thompson, dissent, in Cherokee Nation,
supra note 8, at 67-68.
See William Brandon, Indians 238-239 (1961).
William C. Canby, Jr., American Indian Law in a
Nutshell 16-17 (1988).
CYRUS TOWNSEND BRADY, INDIAN FIGHTS AND FIGHTERS 11 (1971).
Lone Wolf v. Hitchcock, 187 U.S. 553.
Id. at 564-566.
United States v. Alcea Band of Tillamooks, 329 U.S. 40.
Id. at 46-47.
Tee-Hit-Ton Indians v. United States, 348 U.S.
272, 288-289 (1955).
U.S. Const. II, 2.
U.S. Const. III, 2(1).
Jack N. Rakove wrote in Original Meanings:
Politics and Ideas in the Making of the Constitution 8-9 (1996): "Meaning
must be derived from usage, however...alternative
formulations of original intention and understanding become pertinent.
Intention connotes purpose and forethought.... Understanding, by contrast,
may be used more broadly to cover the impressions and interpretations
of the Constitution formed by its original readers--the citizens,
polemicists, and convention delegates who participated in one way
or another in its ratification. .... The Constitution derives its
supremacy, in other words, from a direct expression of popular sovereignty,
superior in authority to all subsequent legal acts resting only on
the weaker foundations of representation."
U.S. Const. II, 2(1).
Cherokee Nation, supra note 11, at 61.
supra note 12, at 555.
Id. at 583.
U.S. Const. I, 8(3).
U.S. Const. VI, 2.
supra note 12, at 559-560.
U.S. Const. III, 8.
Cherokee Nation, supra note 11, at 20.
U.S. Const., Amendment V.
United States v. Alcea Band of Tillamooks, 329 U.S. 40, supra note
U.S. Const. I, 10(1).
Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 142-143 (1810).
Laurence H. Tribe, American Constitutional Law 466
U.S. Const., Amendment V.
Susan Lope, Indian Giver: The Illusion of Effective Legal Redress for Native
American Land Claims, 23 S.W.U. L. Rev. 331, 358-359 (1994).
Steven L. Pevar, The Rights
of Indians and Tribes, an ACLU handbook, 2d ed. 1 (1992).
United States v. Consolidated Wounded Knee Cases, 389 F.Supp. 235. Indian defendants
were charged criminally with acts alleged to have occurred on the
Pine Ridge Indian Reservation near Wounded Knee, S.D. in 1973.
Id. at 236, 238-239.
Id. at 239-240.
Id. at 240.
Quoted by Peter Matthiessen,
In the Spirit of Crazy Horse ix (1972).
Cherokee Nation, supra note 11, at 25.
Id. at 32.
Steven P. McSloy, "Back to the Future:
Native American Sovereignty in the 21st Century," 20 N.Y.U. Rev.
of Law & Social Change 217, 299 (1993).
Cherokee Nation, supra note 11, at 26-27.
Id. at 27.
3 U.N. SCOR, 383 mtg., Dec.
2, 1948, pp. 9-12, cited by Henken
et al, International Law, supra note 18, at 246.
Vine Deloria, Behind the Trail of Broken
Treaties: An Indian Declaration of Independence 183-185 (1974), quoted
by Susan Lope, supra note 93, at 356.
Susan Lope, supra note 106, at 352.
Anaya, Indigenous Peoples, supra note 6, appendix at 185-219.