Antioch Law Journal


Land rights have been the central issue in United States-Indian relations over the past hundred years, just as they were during the preceding century. The interplay of two elementary forces has largely determined the nature of relations between Indian nations and the United States. On one hand, Indian nations have fought tenaciously to maintain their land rights. Indian nations, communities and "tribes" have viewed and continue to view land as essential to their economic and cultural well-being, and thus to their continued political existence. Thus, control over their land is central to their survival as nations. On the other hand, the United States has found itself politically constrained to defend its acquisition of the national territory and, in some instances, to acquire still more Indian land. Virtually all of the United States territory has been acquired from Indian nations, either by purchase and agreement or by theft and other wrongdoing. United States policy toward Indian lands has been directed by conflicting motivations and by countervailing principles that find their roots in the desire for resources on one hand, and the more high-minded desire for justice and the rule of the law on the other hand. The United States has purported to regulate Indian land transactions by law. Yet the political and economic desires of the nation have dictated that the acquisition and the retention of Indian land by the federal government must, in fact, remain unfettered in the national interest. This latter principle found exact expression in the decisions of Chief Justice John Marshall. Hence, the judiciary will not interfere with even the most lawless actions of the Congress and the Executive in dealing with Indian land.