Power, Authority, and Tribal Property

• Main Author: Fletcher, Matthew L.M.
• Format: Text
• Language: unknown
• Published: University of Michigan Law School Scholarship Repository 2006
• Subjects: Indian land claims; Indian rights to land; Johnson v. M'Intosh; tribal land disposession; laches; Cayuga Indian Nation of New York v. Patak; City of Sherrill v. Oneida Indian Nation of New York; Indigenous; Indian; and Aboriginal Law; Property Law and Real Estate; Middle Ground; The Middle Ground; anishina*
• Online Access: https://repository.law.umich.edu/articles/2676; https://digitalcommons.law.utulsa.edu/cgi/viewcontent.cgi?article=2525&context=tlr

Indian land claims have long been a foundational and fundamental subject of American law. Indians and Indian tribes have long been acutely aware that their land base has been shrinking since the beginning of the European invasion. Outnumbered, outgunned, and outbrutalized, Indians have had little choice but to recede. But Indians and Indian tribes have never forgotten their sacred homelands and continuously seek to restore whatever lands they can. This behavior, it seems, baffles non-Indian legal experts and legal philosophers, who argue that these "ancient" Indian land claims should be dismissed. Conversely, there are legal scholars who argue that the Indian rights to land are as absolute as to justify the restoration of vast amounts of land to Indian tribes. In short, there is a wide spectrum of choice for courts in relation to Indian land claims - courts can dismiss the claims altogether or restore the vast tribal land base or choose a middle ground. Until recently, the courts have chosen a version of the middle ground, best exemplified by the Supreme Court's decisions in the Oneida Indian Nation's land claims. The federal courts might not approve of tribes suing hundreds or thousands of "innocent" landowners for eviction, but were willing to allow tribes to sue for trespass damages. The Second Circuit recently rejected this long-established middle ground in Cuygua Indian Nation of N.Y. v. Pataki and dismissed the Cuyuga Indian Nation's land claims based on the equitable doctrine of laches, relying exclusively on a recent Supreme Court case, City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y. This Article rejects the conclusions of the Second Circuit and argues instead that there is no principled reason to depart from the middle ground of earlier cases. We choose to begin by discussing tribal land dispossession from the point of view of the Indians who had been victimized by non-Indians. We discuss two instances of tribal land dispossession of the lands of the Michigan Anishinabeg that have yet to be ...