Land, Culture, and Community: Reflections on Native Sovereignty and Property in America
Rebecca A. Tsosie
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Indiana Law Review, Vol. 34, 2001
Chief Meninock's words describe a world in which the Native people, the land and its resources interact under a Divine plan created for a particular place on earth. The question of intercultural justice is at the heart of this relationship and the way we conceptualize the institution of property can continue to strip Native peoples of their lands and autonomy. The public land laws of the late 19th and early 20th centuries, whether geared toward development, conservation, or preservation, served the interests of American citizens and not Native peoples. Justice O'Connor, writing for the Court, acknowledged the possibility that the road would virtually destroy the Native peoples' ability to practice their religion; however, she refused to apply the balancing test necessary to assess whether there had been a constitutional violation of the Indian tribes' free exercise rights, asserting that, whatever rights the Indians may have to use of the area . . . those rights do not divest the Government of its right to use what is, after all, its land. If intercultural justice is to be achieved, the norms and values of the American property system must respond to these unique features of Native peoples' existence within the territorial boundaries of the United States.
Number of Pages in PDF File: 22
Keywords: Native people, Property, LandAccepted Paper Series
Date posted: May 9, 2009 ; Last revised: June 15, 2011
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