Matthew L. M. Fletcher, The Comparative Rights of Indispensable Sovereigns, 41 Gonz. L. Rev. 1 (2005).
There is a long history of adjudication of the rights and responsibilities of Indians and Indian tribes in their absence. For example, during and after the nineteenth century treaty era the Michigan Ottawa and Chippewa Tribes, a time when the tribe ceded millions of acres of land to the federal government in exchange for permanent homes and protection from the encroachments of non-Indian settlers, railroads, and land speculators, non-Indians used legal processes to divest Ottawa and Chippewa families from their rights to the land. Often, non-Indian land speculators and settlers waited until the seasons when Indian families left for the wetlands in order to harvest wild rice, cattails, maple sugar, and other crops critical to their livelihood. In their absence, legally savvy non-Indians would appear in Traverse City courts and argue that the Indians had abandoned their lands. Notice was rarely given to Indians, few of whom were knowledgeable in Euro-American legal practice, or notice was intentionally delivered to an incorrect address. The local courts, literally in league with the plaintiffs, would proceed in the absence of the Indians who normally resided on the parcel at issue. The courts would declare, summarily, that the Indians had broken the treaties by leaving their homes and abandoning their homestead. Titles would be granted to the non-Indian plaintiffs. When the Indians returned from their traditional and seasonal harvest, their land no longer belonged to them—it belonged to non-Indian plaintiffs. In another example, state and local governments would initiate taxation of the real property of Indians in violation of the treaties, sometimes raising taxes with the explicit intention of driving Indians from the land. Eventually, the taxing government would initiate a tax foreclosure of the Indian lands. Millions of acres of Indian land across the nation were lost due to tax foreclosures. Often, the Indians continued to live for years on the lands they believed to be secured to them by treaty. Eventually, non-Indians would purchase the tax deed from the local government and force the Indian family off their land, which may have been occupied and improved for years. This history is not specific to lower courts. Many fundamental United States Supreme Court decisions defining tribal civil and criminal regulatory and adjudicatory jurisdiction and Indian rights, were decided without the presence of Indian tribes.…Read More