27 N.Y.L. Sch. L. Rev. 921 (1981-1982)
Indian Sovereignty and Eastern Indian Land Claims

handle is hein.journals/nyls27 and id is 933 raw text is: INDIAN SOVEREIGNTY AND EASTERN INDIAN
LAND CLAIMS
In any analysis of law concerning North American Indians, the
concepts of racial and ethnic minority are secondary in comparison to
the principles of tribal sovereignty, nation-state status and aboriginal
title. The United States Constitution recognizes the distinction be-
tween race and tribal sovereignty indirectly in the commerce clause,
and the supremacy clause.2 While the Constitution obliquely refers to
the Black race as 3/5ths of all other persons,'3 it specifically grants
Congress the authority to regulate tribal commerce4 and enter into
treaties with the tribes.5 The United States Supreme Court has stated
that Congress cannot treat Indians solely as a racial group.8
United States law concerning American Indians goes beyond the
recognition of racial and cultural considerations, and attempts to apply
principles emanating from international law. Historically, the interna-
tional relationship between Indian nations and the United States has
been manifested in two ways: in the recognition of aboriginal title; and
in the recognition of independent sources of jurisdiction in Indian
territories.7
Aboriginal title, as first articulated by Francisco de Vitoria, meant
that the inherent right to possession (as that right was understood
under sixteenth century common law principles) belonged to the native
inhabitants even in the absence of deed or grant under seal.8 The so-
called discovery of Indians had no effect on the property rights of
1. U.S. CONST. art. I, § 8.
2. Id. art. VI.
3. Id. art. I, § 2, cl. 3. This reference is found in the part of the Constitution mandat-
ing the method of apportioning direct taxes and seats in the House of Representatives
among the states.
4. Id. § 8, cl. 3. The provision states: The Congress shall have Power To... regu-
late Commerce with foreign Nations, and among the several States, and with the Indian
Tribes. Id.
5. The treaty making power is shared between the Senate and the President. Id. art.
II, § 2, cl. 2. Furthermore, the Constitution expressly declares that [n]o State shall
enter into any Treaty, Alliance or Confederation. Id. art. I, § 10, cl. 1. Thus under
article VI all Treaties made, or which shall be made, under the Authority of the United
States, shall be the supreme Law of the Land. Id. art. VI.
6. See United States v. Antelope, 430 U.S. 641 (1977).
7. Coulter, A History of Indian Jurisdiction, Am. INDIAN J., April 1976, at 2 [herein-
after cited as Coulter].
8. See, L. HANKE, ARISTOTLE AND Tm  AMERICAN INDIANS (1959); Cohen, Original In-
dian Title, 32 MINN. L. REv. 28, 44 (1947) [hereinafter cited as Cohen, Original Indian
Title].

What Is HeinOnline?

With comprehensive coverage of government documents and more than 2,400 journals from inception on hundreds of subjects such as political science, criminal justice, and human rights, HeinOnline is an affordable option for colleges and universities. Documents have the authority of print combined with the accessibility of a user-friendly and powerful database.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline with pricing starting as low as $29.95

Already a HeinOnline Subscriber?