The History of Native American Lands and the Supreme Court
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The History of Native American Lands
and the Supreme Court
ANGELA R. RILEY
The Supreme Court has been instrumen-
tal in defining legal rights and obligations
pertaining to Indian lands since its first path-
marking decision in the field in Johnson v.
McIntosh in 1823. But the groundwork for the
Court's contemplation of such cases predates
Supreme Court jurisprudence, and it in fact
predates the formation of the Court and the
United States itself.
When Europeans first made contact with
this continent, they encountered hundreds of
indigenous, sovereign nations representing
enormous diversity in terms of language,
culture, religion, and governance. For those
indigenous groups-as is a common attribute
of indigeneity of similarly situated groups
around the world-this land was and is
holy land. Indigenous creation stories root
Indian people in this continent-Turtle
Island to many-as the focal point of life,
creation, religion, culture, and language. In
the settlement of the country, the colonial
powers initially-and the United States
subsequently-treated with Indian nations
to negotiate the transfer of lands from Indians
to Europeans, often in exchange for peace and
protection.
Historically, treaties were the primary
mechanism for recognition of Indian lands.
The United States negotiated hundreds of
treaties with Indian nations on a government-
to-government basis to obtain Indian lands
and settle land disputes. This treaty-making
authority was ultimately constitutionalized in
Article II of the United States Constitution,
which states: The President . . . shall have
Power, by and with the Advice and Consent of
the Senate, to make Treaties [with Indian
nations],' which, with the Supremacy
Clause, made treaties the supreme law of
the land.2 Thus, along with the Indian
Commerce Clause,3 there are two constitu-
tional bases for interactions between the
United States and Indian nations.
But Congress ended treaty-making with
tribes in 187 1.4 Since that time, Indian lands
have primarily been recognized through
various treaty-substitutes, including executive
orders, congressional acts, and judicial
decisions.5 Today, there are approximately](ViewImageLocal?handle=hein.journals/jspcth38&div=29&collection=&method=preview&ext=.png&size=3)
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The History of Native American Lands and the Supreme Court
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