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Restorative Justice

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The Chessboard of Litigation and American Indian Land Rights

image of Global Journal of Comparative Law

The nominal sovereignty that the indigenous tribes exercise in the US is further constrained by the federal government exercising the powers of trustee and restricting their rights of alienation over lands. The plenary authority of Congress allows the enactment of all laws impacting on Indians that the federal government deems necessary. It is of overriding effect and has led to the emergence of a land law theory that preserves the power of preemption over the tribal nations. This legal framework dates back to the Marshall doctrine and the Indian Trade and Intercourse Act 1790. The issue is: can there be a reversal of the extinguished title for the indigenous peoples and an assertion of their original claim to rightful ownership? This article compares the land theory that prevails in the US with the developments that have taken place in common law countries, such as Canada and Australia, and concludes that there needs to be an affirmation of the principle of a right in land for the Native people rather than them being ‘tenants at will’ of the federal government.

Affiliations: 1: Member of Gray’s Inn; leading writer on Native American issues,


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