DOCSLIB.ORG

Johnson V. M'intosh and the Expropriation of American Indian

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Johnson V. M'intosh and the Expropriation of American Indian THE DARK SIDE OF EFFICIENCY- JOHNSON V. M7ZNTOSH AND THE EXPROPRIATION OF AMERICAN INDIAN LANDS ERIC KADESt INTRODUCTION .............................................................................1068 I. THE HISTORY OFJOHNSONV. M'INTOSH ...................................1073 A. Land Title and Alienability in Early America......................... 1073 B. The Purchasesof the Illinois and the Wabash Land Companies................................................. 1081 C. The LitigationofJohnson v. M'Intosh ................................1090 1. Prelude .........................................................................1090 2. Supreme Court Arguments and Holdings ..................1093 3. Marshall's Version of Indian Title ...............................1096 4. Legal Basis for the M'Intosh Rule: Custom .................1098 II. EFFICIENT EXPROPRIATION .....................................................1103 A. Custom and the Efficiency InterpretationofM'Intosh ............1106 1. Evolution of Efficient Customary Rules ......................1106 2. Contrasting Efficiency with Other Explanations of M'Intosh................................... 1108 B. GoverningEuropean-Indian Relations: Presentinga UnitedFront ..................................................... 1110 1. United Front in Land Purchases .................................1110 2. The Bargaining Game ..................................................1118 a. Bargaining "Tricks" Colorably Consistent with ContractLaw .....................................1119 b. Fraud,Overawing and Threats.................................. 1124 c. Why the Indians Could Not Use Tricks and Threats .....1127 d. The Americans' Use ofBoth Acceptable Tricks and UnacceptableThreats ........................................... 1129 t Associate Professor, Wayne State University Law School. Thanks to Douglas Al- len, Kingsley Browne, Frank Buckley, Steve Calkins, Bob Ellickson, Peter Henning, Jim Krier, Mike McIntyre, Jack Mogk, Carol Rose, Sandra Van Burkleo, Vince Wellman, and Ed Wise, for both encouragement and very helpful comments. (1065) 1066 UNIVERS17Y OFPENNSYLVANIA LAWREVIEW [Vol. 148:1065 C. Explainingthe Rarity ofFighting: The DeadweightLoss ofFighting............................................ 1131 D. Altering the Terms of Trade: NaturalAllies........................... 1141 1. Depopulation by Disease ............................................. 1141 2. Game-Thinning ............................................................ 1146 3. Understanding the Economic Impact of Game-Thinning ........................................................ 1151 E. Altering the Terms of Trade: Legal Rules to Attract Settlers and Deal with Externalities....... 1153 1. Attracting and Rewarding Settlers ............................... 1153 a. The Economics ofAttracting and Rewarding Settlers..... 1153 b. Legal Rules to Attract and Reward Settlers................... 1156 i. Compactness and the Rectangular Survey System ............................... 1156 ii. Special Programs for Special Abilities: Military Bounties ............................................... 1161 iii. Requiring Improvements .................................. 1163 iv. Disfavoring Large-Scale Speculation ............... 1164 v. Discounts to Attract the Masses ........................ 1168 2. Negative Externalities of Lawless Settlers, Speculators, and Traders ............................................. 1175 3. Positive Externalities of Trade ..................................... 1183 F. Puttingthe Pieces Together: The Algorithm of Efficient Expropriation........................................................... 1184 G. AnalogizingEfficient Conquest to Eminent Domain................ 1185 CONCLUSION ................................................................................. 1189 2000] EXPROPRIATION OFAMERICAN INDIAN LANDS 1067 Claims inJohnson v. M'Intosh LEGEND F Tracts Purchased by Illinois Company (1773) Tracts Purchased by Wabash Company (1775) *Townships Containing McIntosh Purchases of 1815 (at issue in case) Townships Containing McIntosh Purchases of 1819 (not at issue in case) 1068 UNIVERS17Y OFPENNSYLVANIA LAWREVEW [Vol. 148:1065 The Spaniards were unable to exterminate the Indian race by those un- paralleled atrocities which brand them with indelible shame, nor did they succeed even in wholly depriving it of its rights; but the Americans of the United States have accomplished this twofold purpose with singu- lar felicity, tranquilly, legally, philanthropically, without shedding blood, and without violating a single great principle of morality in the eyes of the world. It is impossible to destroy men with more respect for the laws of humanity.1 INTRODUCTION One of the most critical deprivations that the American Indians suffered at the hands of the United States was the loss of their lands. Within two centuries of the first European settlements in North Amer- ica, the newcomers held title to almost every acre of the continent. At the root of most land titles in America today sits a federal patent. Government title, in turn, flows from "[t]he great case of Johnson v. M[]Intosh,"2 which held that the United States has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. Mntosh was consistent with a long and uninterrupted line of statutes, regulations, and proclamations that barred private purchases of land from the Indians. Most discussion of MYntosh, and, more generally, of the larger process of expropriating North America from the Indians, has focused on normative questions about the relative evil or benevolence of the invading Europeans. De Tocqueville, contrasting Spanish "atrocities" with American legality and philanthropy, expressed the benevolent view that, unsurprisingly, was quite common in early America. E. de Vattel, a prominent eighteenth-century scholar of international law, noted with favor the American practice of buying lands even where, strictly speaking, the law did not require it: [W]e can not but admire the moderation of the English Puritans who were the first to settle in New England. Although they bore with them a charter from their sovereign, they bought from the savages the lands they wished to occupy. Their praiseworthy example was followed by 1 ALExIs DE TOCQUEVILLE, DEMOCRACY IN AMERICA 355 (Phillips Bradley ed. & Henry Reeve trans., Alfred A. Knopf, Inc. 1945) (1835). 2 Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1954) (citingJohnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823)). In the M'Intosh opinion itself, ChiefJustice Marshall adverted to the "magnitude of the interest in [this] litigation." M'Intosh, 21 U.S. (8 Wheat) at 604. William McIntosh spelled and signed his last name with a "c" instead of an apostrophe, yet the Supreme Court used an apostrophe. 20001 EXPROPRIATION OFAMERICAN INDIAN LANDS 1069 William Penn and the colony of Quakers that he conducted into Penn- sylvania.' Other commentators, while also maintaining that Europeans ex- propriated with the best of intentions, at least tried to come to terms with the undeniably detrimental effect on Indians. "No government ever entertained more enlightened and benevolent intentions toward a weaker people than did that of the United States toward the Indian, but never in history, probably, has a more striking divergence between intention and performance been witnessed."4 Despite this failure to translate intent into effective action, leading scholars of this century have concurred with this sympathetic view. Felix Cohen, the founder of American Indian law as a distinct and scholarly field of study, noted that America paid for almost every square foot of the nation. He thus argued that "[w]e are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typi- cal."5 Francis Paul Prucha, a leading historian of relations between the United States and the Indians, has argued that treaties and stat- utes evidence a sincere desire to protect Indian rights.6 Another his- torian, Don Russell, after debunking the myth that Indian massacres played a significant role in expropriating the continent by exterminat- ing its aboriginal inhabitants, argued that the United States behaved with at least relative humanity. "Much of world history tells of the movements of peoples that infringe on other peoples. Rarely have the infringed upon been treated with more7 consideration and humane- ness than was the American Indian." The opposite view, that European laws and practices amounted to a patently immoral land-grab, dates back at least to the years immedi- S 8 E. DE VATFEI, LE DROIT DES GENS, OU PRINCIPES DE LA LoI NATURELLE, APPIQU 5 A LA CONDUrIE ET AUX AFFAIRES DES NATIONS ET DES SOUVERAINS [LAw OF NATIONS OR THE PRINCIPLES OF NATURAL LAW APPLIED TO THE CONDUCT AND TO THE AFFAIRS OF NATIONS AND OF SOvEREIGNS) 85-86 (Charles G. Fenwick trans., Oceana Publications, Inc. 1964) (1758). 4 MILO MILTON QUAIFE, CHICAGO AND THE OLD NORTHvEST, 1673-1835, at 179 (1913). 5 Felix S. Cohen, OriginalIndian Title, 32 MINN. L. REV. 28, 34 (1947). 6 See FRANCiS PAUL PRUCHA, AMERICAN INDIAN POuCY IN THE FORiATIVE YEARS: THE INDIAN TRADE & INTERCOURSE ACTS, 1790-1834, at 248 (1962) ("For [the Indian policy of the United States] we must turn to the treaties made with the Indians, which uniformly guaranteed Indian rights... ."). Don Russell, How Many
Load more

Recommended publications
  • Who Owns the Water in the West? an Overview of the Challenges Facing Private Prior Appropriation & Federal Reserved Water Ri
    Lawrence Kogan, Esq. NY, NJ, DC Of Counsel: James Wagner, Esq. MA Fred B. Wilcon, Esq. MA Who Owns the Water in the West? An Overview of the Challenges Facing Private Prior Appropriation & Federal Reserved Water Rights © By Lawrence A. Kogan, Esq. Kentucky Journal of Equine, Agriculture, & Natural Resources Law 2nd Symposium Energy & the Environment: The Interplay of Regulations and Natural Resources Law & Policy Lexington, Kentucky March 2, 2016 I. Privately Owned Water Rights A. Water is a Property Right i. Water is a form of property b/c the holder of the water right has a thing of value that can be alienated - provide economic benefits to him. Palmer v. Railroad Comm'n, 167 Cal. 163, 138 P. 997 (1914). ii. But, the corpus of the water cannot be ‘owned’ if it remains in the stream, “‘because…so long as it continues to run there cannot be that possession of it which is essential to ownership.’” Instead, it is only a usufructuary right to the water. Maricopa County Mun. Water Conservation Dist. v. Southwest Cotton Co., 4 P.2d 369 (Ariz. 1931); Palmer v. Railroad Comm'n of Cal., 138 P. 997, 999 (Cal. 1914). B. Riparian Doctrine (Abundance of Water) – private landowners have property rights (consumptive and non-consumptive access & beneficial use rights) in the waters contiguous to their lands (lakes, streams). Lux v. Haggin, 69 Cal. 255, 10 P. 674 (1886). Private landowners also possess a right of access to adjacent navigable waters. Board of Trustees v. Maderia Beach Nominee, Inc., 272 So. 2d 209, 214 (Fla.
    [Show full text]
  • The Christian Doctrine of Discovery
    The Christian Doctrine of Discovery By Dan Whittemore, Denver, Colorado, USA For centuries, indigenous peoples around the world have suffered the disastrous impact of European colonization. As a Christian, descended from Europeans, I am remorseful and repentant because I am complicit in this problem. Undoubtedly some of my ancestors helped create the situation that has resulted in discrimination and prejudicial and derogatory concepts of the original inhabitants. Broken contracts, ignorance of native culture and spirituality, and illegitimate appropriation of lands have contributed to poverty and psychological damage that persist. We are challenged to examine the root causes and make corrections. The centuries-old Christian Doctrine of Discovery, if repudiated, could initiate justice for all indigenous people. The Doctrine of Discovery is the premise that European Christian explorers who “discovered” other lands had the authority to claim those lands and subdue, even enslave, peoples simply because they were not Christian. This concept has become embedded in the legal policies of countries throughout the world. This is an issue of greed, oppression, colonialism, and racism. The doctrine’s origins can be traced to Pope Nicholas V, who issued the papal bull1 Romanus Pontifex in 1455 CE. The bull allowed Portugal to claim and conquer lands in West Africa. After Christopher Columbus began conquering newly “found” lands in the Americas, Pope Alexander VI granted to Spain the right to claim these lands with the papal bull, Inter caetera, issued in 1493. The Treaty of Tordesillas settled competition between Spain and Portugal. It established two principles: 1) that only non-Christian lands could be taken, and 2) that potential discoveries would be allocated between Portugal and Spain by drawing a line of demarcation.
    [Show full text]
  • American Indian Law Journal
    American Indian Law Journal Volume III, Issue II • Spring 2015 “The Spirit of Justice” by Artist Terrance Guardipee Supported by the Center for Indian Law & Policy SPIRIT OF JUSTICE Terrence Guardipee and Catherine Black Horse donated this original work of art to the Center for Indian Law and Policy in November 2012 in appreciation for the work the Center engages in on behalf of Indian and Native peoples throughout the United States, including educating and training a new generation of lawyers to carry on the struggle for justice. The piece was created by Mr. Guardipee, who is from the Blackfeet Tribe in Montana and is known all over the country and internationally for his amazing ledger map collage paintings and other works of art. He was among the very first artists to revive the ledger art tradition and in the process has made it into his own map collage concept. These works of art incorporate traditional Blackfeet images into Mr. Guardipee’s contemporary form of ledger art. He attended the Institute of American Indian Arts in Sante Fe, New Mexico. His work has won top awards at the Santa Fe Market, the Heard Museum Indian Market, and the Autrey Museum Intertribal Market Place. He also has been featured a featured artists at the Smithsonian’s National Museum of the American Indian in Washington, D.C., along with the Museum of Natural History in Hanover, Germany, and the Hood Museum at Dartmouth College. American Indian Law Journal Editorial Board 2014-2015 Editor-in-Chief Jocelyn McCurtain Managing Editor Callie Tift Content Editor Executive Editor Jillian Held Nancy Mendez Articles Editors Writing Competition Chair Events Coordinator Jessica Buckelew Nick Major Leticia Hernandez Jonathan Litner 2L Staffers Paul Barrera - Jessica Barry J.
    [Show full text]
  • Some Jurisprudential and Pragmatic Considerations Regarding Territorial Acquisition Among Nation- States John C
    Boston College International and Comparative Law Review Volume 35 | Issue 1 Article 1 Winter 1-1-2012 Following a Sigmoid Progression: Some Jurisprudential and Pragmatic Considerations Regarding Territorial Acquisition Among Nation- States John C. Duncan Jr. Florida A&M University College of Law, [email protected] Follow this and additional works at: http://lawdigitalcommons.bc.edu/iclr Part of the International Law Commons Recommended Citation John C. Duncan Jr., Following a Sigmoid Progression: Some Jurisprudential and Pragmatic Considerations Regarding Territorial Acquisition Among Nation-States, 35 B.C. Int'l & Comp. L. Rev. 1 (2012), http://lawdigitalcommons.bc.edu/iclr/vol35/iss1/1 This Article is brought to you for free and open access by the Law Journals at Digital Commons @ Boston College Law School. It has been accepted for inclusion in Boston College International and Comparative Law Review by an authorized editor of Digital Commons @ Boston College Law School. For more information, please contact [email protected]. FOLLOWING A SIGMOID PROGRESSION: SOME JURISPRUDENTIAL AND PRAGMATIC CONSIDERATIONS REGARDING TERRITORIAL ACQUISITION AMONG NATION-STATES John C. Duncan, Jr.* Abstract: This article analyzes methods and doctrines used by States to ac- quire territories. The role of the United Nations in resolving disputes be- tween nations and the inhabitants directly affected by the disputes is also addressed, including the jurisdictional, jurisprudential, and practical con- siderations of territorial acquisition. Finally, traditional territorial acquisi- tion doctrines are applied to extraterrestrial and outer space acquisition. As Western civilization etched out territories and borders across its known world, international norms of diplomatic behavior appeared in the form of customs.
    [Show full text]
  • Doctrine of Discovery: Questions and Answers
    Doctrine of Discovery: Questions and Answers Q. What is the Doctrine of Discovery? The Doctrine of Discovery is a principle of international law dating from the late 15th century. It has its roots in a papal decree issued by Pope Nicholas V in 1452 that specifically sanctioned and promoted the conquest, colonization, and exploitation of non-Christian territories and peoples. Hundreds of years of decisions and laws continuing right up to our own time can ultimately be traced back to the Doctrine of Discovery—laws that invalidate or ignore the rights, sovereignty, and humanity of indigenous peoples in the United States and around the world. Q. Why does the Doctrine of Discovery still matter when it is over 500 years old? It is still in effect and is written into settled US law since 1823 about a land dispute between two individuals (Under Chief Justice John Marshall). It forms the basis for “Manifest Destiny,” the expansion into Indian lands. It is used to justify legal and forcible takeover of indigenous lands, without just compensation. The Discovery Doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. McIntosh in 1823. In this Supreme Court case, Chief Justice John Marshall's opinion in the unanimous decision held "that the principle of discovery gave European nations an absolute right to New World lands." In essence, American Indians had only a right of occupancy, which could be abolished.” (Source: www.redlakenationnews.com/story/2017/06/15/news/doctrine- of-discovery-repudiated/61672.html) It is used to interpret Indian Treaties in a way that has undermined treaty rights.
    [Show full text]
  • Right to Self-Defence in National and International Law: the Role of the Imminence Requirement
    "I KNOW NOT WITH WHAT WEAPONS WORLD WAR Im WILL BE FOUGHT, BUT WORLD WAR IV WILL BE FOUGHT WITH SUCKS AND STONES." EINSTEIN1 THE RIGHT TO SELF-DEFENCE IN NATIONAL AND INTERNATIONAL LAW: THE ROLE OF THE IMMINENCE REQUIREMENT Onder Bakircioglu* This article explores the doctrine of self-defence within the context of the challenges directed at the imminence requirement, from the perspective of both national and international law. The article will attempt to illustrate that the requirement of imminence underlines the political character of the self-defence doctrine wherein private force may only be resorted to in the absence of institutional protection. This study will argue that the imminence rule can not merely be regarded as a "proxy" for establishing necessity; rather, the elements of imminence, necessity, and proportionality are inextricably connected to ensure that defensive force is only resorted to when national or international authorities are not in a position to prevent an illegal aggression, and that the defensive lethal force is not abused. INTRODUCTION The September 11 attacks aroused controversy as to whether anticipatory or pre-emptive self-defence 2 is allowed under customary international law, and if so, under what circumstances. Following the devastating attacks on New York and Washington, the 2002 National Security Strategy (NSS) made it clear that the United States would act unilaterally to protect its security against "emerging threats before they are fully formed."3 This approach signified a radical departure from the collective security system by the sole existing super power. Indeed, while the right to national self-defence has been recognized as an inherent right of states since the very emergence of international law, * Onder Bakircioglu, Lecturer in Law, Queen's University Belfast.
    [Show full text]
  • Nuts and Bolts of a Foreclosure Action
    NUTS AND BOLTS OF A FORECLOSURE ACTION Sponsor: Young Lawyers Division CLE Credit: 1.0 Wednesday, June 17, 2015 2:25 p.m. - 3:25 p.m. Elkhorn A-D Lexington Convention Center Lexington, Kentucky A NOTE CONCERNING THE PROGRAM MATERIALS The materials included in this Kentucky Bar Association Continuing Legal Education handbook are intended to provide current and accurate information about the subject matter covered. No representation or warranty is made concerning the application of the legal or other principles discussed by the instructors to any specific fact situation, nor is any prediction made concerning how any particular judge or jury will interpret or apply such principles. The proper interpretation or application of the principles discussed is a matter for the considered judgment of the individual legal practitioner. The faculty and staff of this Kentucky Bar Association CLE program disclaim liability therefore. Attorneys using these materials, or information otherwise conveyed during the program, in dealing with a specific legal matter have a duty to research original and current sources of authority. Printed by: Evolution Creative Solutions 7107 Shona Drive Cincinnati, Ohio 45237 Kentucky Bar Association TABLE OF CONTENTS The Presenter .................................................................................................................. i Nuts and Bolts of a Foreclosure Action ........................................................................... 1 Foreward ............................................................................................................
    [Show full text]
  • Judicial Review of Indian Treaty Abrogation: "As Long As Water Flows, Or Grass Grows Upon the Earth" -- How Long a Time Is That?
    University of Colorado Law School Colorado Law Scholarly Commons Articles Colorado Law Faculty Scholarship 1975 Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows upon the Earth" -- How Long a Time Is That? Charles F. Wilkinson University of Colorado Law School John M. Volkman Center for Urban Education Follow this and additional works at: https://scholar.law.colorado.edu/articles Part of the Courts Commons, Dispute Resolution and Arbitration Commons, Indian and Aboriginal Law Commons, Land Use Law Commons, Legal History Commons, and the Legislation Commons Citation Information Charles F. Wilkinson and John M. Volkman, Judicial Review of Indian Treaty Abrogation: "As Long as Water Flows, or Grass Grows upon the Earth" -- How Long a Time Is That?, 63 CALIF. L. REV. 601 (1975), available at https://scholar.law.colorado.edu/articles/1124. Copyright Statement Copyright protected. Use of materials from this collection beyond the exceptions provided for in the Fair Use and Educational Use clauses of the U.S. Copyright Law may violate federal law. Permission to publish or reproduce is required. This Article is brought to you for free and open access by the Colorado Law Faculty Scholarship at Colorado Law Scholarly Commons. It has been accepted for inclusion in Articles by an authorized administrator of Colorado Law Scholarly Commons. For more information, please contact [email protected]. +(,121/,1( Citation: Charles F. Wilkinson; John M. Volkman, Judicial Review of Indian Treaty Abrogation: As Long as Water Flows, or Grass Grows upon the Earth--How Long a Time is That, 63 Cal.
    [Show full text]
  • Original Principles of Federal Indian Law
    North Dakota Law Review Volume 64 Number 1 Article 2 1988 Protection of What Rights They Have: Original Principles of Federal Indian Law Jill Norgren Follow this and additional works at: https://commons.und.edu/ndlr Part of the Law Commons Recommended Citation Norgren, Jill (1988) "Protection of What Rights They Have: Original Principles of Federal Indian Law," North Dakota Law Review: Vol. 64 : No. 1 , Article 2. Available at: https://commons.und.edu/ndlr/vol64/iss1/2 This Article is brought to you for free and open access by the School of Law at UND Scholarly Commons. It has been accepted for inclusion in North Dakota Law Review by an authorized editor of UND Scholarly Commons. For more information, please contact [email protected]. PROTECTION OF WHAT RIGHTS THEY HAVE: ORIGINAL PRINCIPLES OF FEDERAL INDIAN LAW JILL NORGREN* I. INTRODUCTION ............................ 74 II. LAW AND THE EARLY EUROPEANS IN THE NEW W ORLD .............................. 75 A . THE SPANISH ............................ 76 B. THE DUTCH AND THE BRITISH ................ 78 III. REVOLUTIONARY AND TRANSITION YEARS.. 79 IV. ENTER THE COURT: THE DEVELOPMENT OF DOCTRINE IN FLETCHER, WILSON, AND JO H N SO N ................................. 83 A. THE YAZOO CASE: FLETCHER V. PECK ........... 83 B. NEWJERSEYV. W ILSON .................... 87 C. JOHNSON V. M'INTOSH: POSSESSORY INTEREST BUT NOT PROPERTY INTEREST ................... 88 V. A CRITICAL JUNCTURE: THE CHEROKEE C A SE S .................................... 94 A. HISTORICAL BACKGROUND .................. 94 B. DEVELOPMENT OF THE.DOCTRINE OF GUARDIAN- SHIP FOR "DOMESTIC DEPENDENT NATIONS". ... 101 C. THE SECOND "CHEROKEE CASE" .............. 105 VI. THE EARLY TEST: MID-NINETEENTH CENTURY APPLICATION OF ORIGINAL PRINCIPLES OF FEDERAL INDIAN LAW ......
    [Show full text]
  • The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada
    Canada-United States Law Journal Volume 39 Issue Article 5 January 2014 The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada Guy Charlton Follow this and additional works at: https://scholarlycommons.law.case.edu/cuslj Part of the Transnational Law Commons Recommended Citation Guy Charlton, The Law of Native American Hunting, Fishing and Gathering Outside of Reservation Boundaries in the United States and Canada, 39 Can.-U.S. L.J. 69 (2015) Available at: https://scholarlycommons.law.case.edu/cuslj/vol39/iss/5 This Article is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Canada-United States Law Journal by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. THE LAW OF NATIVE AMERICAN HUNTING, FISHING AND GATHERING RIGHTS OUTSIDE OF RESERVATION BOUNDARIES IN THE UNITED STATES AND CANADA Guy Charlton* ABSTRACT: This article examines and compares the law of Native American/Aboriginal hunting, fishing and gathering rights in those areas which are located outside of reserved land area in Canada and the United States. The article argues that despite the differing statutory and constitutional traditions, both states’ law and policy towards the Native American continues to reflect the underlying premises of the colonial project. While indigenous peoples have significant use rights, national, state and provincial power remains the primary locus of regulatory authority. However, there may be opportunities to extend use and co-management rights to allow tribes to be involved in land use and environmental regulatory decisions.
    [Show full text]
  • Deconstructing the Doctrine of Discovery
    FOLLOW Indian Country Today Archives Deconstructing the Doctrine of Discovery David E. Wilkins Oct 24, 2014 Deconstructing the Doctrine of Discovery “Again, were we to inquire by what law or authority you set up a claim [to our land], I answer, none! Your laws extend not into our country, nor ever did. You talk of the law of nature and the law of nations, and they are both against you.” —Corn Tassel (Cherokee, 1785) There’s been a lot of talk lately about the so-called Doctrine of Discovery, originally a theological fiction produced in the 1400s, later transformed into a political fiction by European heads of state, and then into a legal fiction by U.S. Supreme Court Chief Justice John Marshall in 1823. Today it has been dangerously repurposed as popular fiction that serves to revise neo-colonial history, fuel oppressive legal decisions, and assuage majority culture guilt. Left unchallenged, the myths generated pose grave threats to our identities as peoples with inalienable sovereign rights to governance and territory. Without question the doctrine of discovery is one of the most important tenets of federal Indian law, working in tandem with several other doctrines–trust, plenary power, and reserved rights—to provide the ambiguous and uneven political framework for modern day Indigenous/State relationships. Notwithstanding its general acceptance, the concept has been so misused to distort perceptions of past and present oppression that it should be stricken from the federal government’s political and legal vocabulary. Discovery, as originally conceived in Pope Alexander VI’s 1493 papal bull, granted the Spanish exclusive interests in the Americas.
    [Show full text]
  • THE CHAMPION. [1 Brown, Adm
    YesWeScan: The FEDERAL CASES 5FED. CAS.—28 Case No. 2,583. THE CHAMPION. [1 Brown, Adm. 520;1 1 Am. Law T. Rep. (N. S.) 493: 7 Chi. Leg. News, 1.] District Court, E. D. Michigan. Sept., 1874. MARITIME LIEN—SUPPLIES FURNISHED IN CANADA—RIGHT OF ASSIGNEE TO SUE. 1. By the law of England previous to the status of 3 & 4 Viet., no lien existed for supplies furnished domestic vessels. [Cited in The Union Express, Case No. 14,364; Whittaker v. The J. A. Travis, id. 17,599.] 2. Whether such lien existed with respect to foreign vessels, or whether the court of admiralty had jurisdiction to enforce it, seems never to have been settled prior to the passage of the act of 3 & 4 Vict. This statute was, however, simply declaratory of the maritime law with respect to the existence of the lien as it was prior to its passage, and vested jurisdiction to enforce it in the admiralty courts. [Cited in The Champion, Case No. 2,584.] 3. Want of jurisdiction to enforce a lien in any particular locality is not fatal to the existence of the lien The lien exists by virtue of the general maritime law—it follows the ship wherever she goes, and may be enforced wherever there is jurisdiction to enforce it. [Cited in The Union Express, Case No. 14,364.] 4. There is a lien in Canada for supplies furnished an American vessel, and a court of admiralty has power to enforce this lien. 5. A lien for supplies is divested by an assignment of the claim.
    [Show full text]