38 J. Sup. Ct. Hist. 369 (2013)
The History of Native American Lands and the Supreme Court

handle is hein.journals/jspcth38 and id is 375 raw text is: 














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

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