Interesting analysis. I think it's odd that the Indian Civil Rights Act incorporates the Fourth Amendment's prohibition against unlawful searches and seizures, yet Indian reservations are subject to the Property and Commerce Clauses of the US Constitution. In particular, the Property Clause states that the US may dispose of and regulate all property that belongs to it and will not tolerate any prejudice against its claims to its own properties. (By operation of Supreme Court case law, Indian reservations fall under "property" as far as the Property Clause is concerned.) So, I don't know whether using Jones as a precedent to litigate a Fourth Amendment violation in Indian Country is useful. Furthermore, as you quoted in the article, Jones was more about asserting European and American views of property rights that, by philosophical extension through Johnson v. M'Intosh, would never recognize an Indian claim to title over land within the United States. I don't know if we'll ever see an Indian law version of U.S. v. Jones, but then I wonder just how obvious the outcome would be?
Thursday, February 9, 2012 - 05:26