U.S. Land Rights for Indians?
There is an argument within federal-Indian law literature that suggests Indians could have more effectively protected land under U.S. law if they owned land in fee simple rather than under trust. There is better protection for private property under the U.S. Constitution than can be had from treaties, aboriginal title, and federal trust protection.
This kind of argument is called a hypothetical and requires acceptance of certain assumptions before the argument’s logic can be understood. Hypotheticals are used in legal debates and in law school teaching to consider various outcomes of cases by hypothetically changing case facts. Hypotheticals explore alternative case situations, or anticipate future scenarios based on changing circumstances.
One such hypothetical suggests that if Indians had U.S. land ownership rights they would have had greater success defending their land. The implication is that trust lands and treaty lands, which ultimately derive from aboriginal title have not been easily defendable in U.S. law. Indian trust land does not have direct support from the private property rights assumed under the Constitution.
To accept the proposed hypothetical, one has to assume that Indians would accept private individual land and protect it in U.S. courts, law and government. If one can accept Indians agreeing to private land ownership, then the proposed argument has force. The U.S. government, laws, and courts are constitutionally bound to protect private property. If Indians were agreeable that tribal land could be turned into private property then they would have the property protections of the U.S. system. In some cases, in recent decades, conservative judges and legislators have favored Indian land rights, often because they saw Indian land as private property. The judges in the Cobell case saw the money unpaid to Indian trust allotments as a violation of property rights.
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