Introduction: The Aboriginal Occupiers of the Soil

Vol. 33 No. 2

By

S. Bobo Dean, a partner in the Washington, D.C., law firm of Hobbs, Straus, Dean & Walker, LLP, has represented Indian tribes and tribal organizations for forty years. He is cochair of the Committee on Native American Concerns of the ABA’s Section of Individual Rights and Responsibilities and an editor of this special issue.

In 1832, Chief Justice John Marshall wrote, “It is difficult to comprehend the Proposition that the inhabitants of either quarter of the globe could have rightful claims of dominion over the inhabitants of the other, or over the lands they occupied.” It remains just as difficult to comprehend today as it was then. Yet, based on cases decided by the courts of the United States, the “courts of the conqueror” as Marshall and others called them, the Indian tribes that were the aboriginal occupiers of U.S. soil remain uniquely “domestic nations,” not foreign to the United States. Generally, they are distinct communities, occupying their own territory, with boundaries accurately described, and within those boundaries, they may govern themselves by their own laws except as limited by the plenary power of Congress in Indian affairs.

In choosing the title of this issue, “Aboriginal Occupiers of the Soil,” which is shorthand for the legal principles developed by Justice Marshall for application to the hundreds of Native communities that occupied the territory that became the United States, the editors did not necessarily intend to indicate agreement with the doctrines of federal Indian law. Indeed, Marshall himself suggested that neither “reason” nor “nature’s God” supported these principles. Rather, we want to draw our readers’ attention to the continuing anomalies that result from these doctrines. This country, dedicated to the proposition that all are created equal, nevertheless is based, perhaps necessarily so, on the concept that the European discoverers (and the United States) could dispossess those they found here. At the same time, to the extent that the United States has accorded rights to the aboriginal occupiers, these rights can be successfully asserted in our courts. For example, taking of lands reserved by treaty or statute for an Indian tribe violates the Fifth Amendment and requires that the Indians be compensated.

This issue of Human Rights provides an opportunity to review the development of the principles of federal Indian law that govern the United States in its relations with the tribes and to review a variety of issues that need to be understood to address the application of those principles in present circumstances. Subjects covered include a review of the development of federal Indian law and policy, the fiduciary obligations of the United States to the tribes and their members as presented in current litigation asserting a breach of those obligations, the effect of the legal status of Indian tribes on their economic development and environmental hazards, the specific status of Alaska Native villages that are recognized by the United States as tribes but often not accorded the same rights
as other tribes, an overview of the legal status of Native Hawaiians, the Native effort in the Americas to preserve their culture and sacred sites, and the extent to which the United States has currently fulfilled its legal obligation to raise the health status of Indian and Alaska Native peoples.

The ABA has long supported the rights of Indian tribes under the laws of the United States. Most recently, in 2004 and 2005, the ABA urged Congress to reauthorize the Indian Health Care Improvement Act, making improve­ments in existing legislation as requested by tribes to assure more comprehensive and efficient health care to Indian and Alaska Native people. It has also endorsed S. 147, which would initiate a process to assure a government-to-government relationship between the United States and the native people of Hawaii. Under the sponsorship of the Section of Individual Rights and Responsibilities, a panel presentation on the Legal Status of Native Hawaiians will be a plenary session program at the 2006 Annual Meeting in Honolulu on August 3.

This issue also singles out the outstanding accomplishments of Native American attorney John Echohawk, executive director of the Native American Rights Fund.

The editors hope that this installment of Human Rights will contribute to a just and realistic effort to assure that the future relationship of the United States to the indigenous peoples within its borders will exemplify its best values rather than, as so often in the past, its worst.

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