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A Dawes era poster.

U.S. Land Rights for Indians?

Duane Champagne

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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Michael Madrid's picture
Michael Madrid
Submitted by Michael Madrid on
This argument about whether NDNs would have had a better chance at maintaining their lands had there been individual ownership as opposed to allotments reminds me of a financial snafu I had about five years ago. _________________________ I got into a really, really bad bicycle accident (broke three ribs, got a compound fracture of my right collarbone, punctured my lung and shattered my right wrist almost beyond repair). At the time I was medically insured through my wife's work insurance (she is an R.N. who works at a local hospital). After the bills started coming through (in the tens of thousands of dollars) our medical insurance sent numerous letters complaining that they were not getting the medical records pertinent to my case, while the hospital was pestering me about payment. As with many things in the White world, one hand doesn't know what the other is doing.