Journal of Supreme Court History

T h e H is to ry o f N a tiv e A m e ric a n L a n d s a n d th e S u p re m e C o u rtKJIHGFEDCBA ANGELA R. RILEYzyxwvutsrqpon The Su p re m e Co u rt has be e nins tru m e n­ tal in de fining le gal rights and o bligatio ns p e rtaining to Indian lands s ince its firs tp ath­ m arkingde cis io nin the fie ld in onmlkjihgfedcbaZYXWVUTSRQPONMLKJIHGFEDCBA 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 oflands 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 govemmentto -govemment 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],”1 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 1871,4 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 3 7 0 J O U R N A L O F S U P R E M E C O U R T H IS T O R Y zyxwvutsrqponmlkjihgfedcbaZYXWVUTSRQ fifty -s ixm illio n acre so fland he ldin tru s tfo r Indian natio ns by the fe de ralgo ve rnm e nt. 6 Approximately 9.5 million are guaranteed by treaty. These vitally important—and often­ times sacred—lands are the very places that commonly were desired most by non-Indians and competing sovereigns for their vast natural and cultural resources. As a conse­ quence, these are also the places over which contested claims drove litigation to the United States Supreme Court. Disputes over land arose almost from the point ofcontact between the Indian nations— who had pre-existing sovereignty and man­ agement over the continent—and Europeans, who sought to settle the New World. As pressure for Indian lands increased, the colonial powers—and later, the United States—began to establish parameters to govern land transactions. As legal historian Eric Kades explains, to navigate these disputes—particularly as they came to be settled, in the language of Chief Justice John Marshall, in the “courts of the conqueror”7— Americans sought a body oflaw to define land rights. But this task proved to be most complicated, as disputes had to be settled upon at least two axes: first, they needed to establish rules to deal with the claims by competing European sovereigns for the same lands; and, second, the European settlers had to determine “what rights, if any, Indians had to their own lands.”8 Subsequently unfolding events tell the story of the settlement of the continent and formation of the country that would become the United States of America. Accordingly, the history of Native American lands in the United States Supreme Court is not a historical relic, but a living legacy...