Path forward for US Government to cede lands back to Native Americans!

For starters, see:www.theguardian.com...

This is a somewhat intricate legal analysis that follows along these lines:

The US Citizenship and Immigration Services (USCIS) has altered its mission statement, removing the characterization of America as a “nation of immigrants” in order to emphasize the new goal of “securing the homeland”

The legal foundation of the federal claim to dominion over territory is something called the Doctrine of Discovery, a notion that goes back five centuries. As European explorers sought new maritime passages and found new lands, popes granted European powers the authority to “invade, search out, capture, vanquish and subdue” the people they found.

The young American republic preserved this European doctrine. The US supreme court formalized the Doctrine of Discovery in three famous cases of 1823, 1831 and 1832. Chief Justice John Marshall took for granted the obvious fact that America was the homeland of the Native Americans, “the rightful occupants of the soil”. By the logic of “discovery”, Native Americans had no rights because America was their homeland: “Their power to dispose of the soil at their own will to whomsoever they pleased was denied by the original fundamental principle that discovery gave exclusive title to those who made it.”

So............Doctrine of Discovery gave exclusive title of newly discovered lands to the entity that made or claimed the discovery.

In American law, to have a homeland established no sovereignty over territory; only immigration created such authority. According to Marshall, English charters and claims had established an “absolute and complete” title to the land of North America, which then “passed to the United States” in 1776. The judicial magic of creating sovereignty and property is performed on behalf of immigrants and only on behalf of immigrants.

And here's the kicker folks!

If the federal government no longer defines the America as a “nation of immigrants”, it abandons, by its own logic, the claim to sovereignty over the land. If US policy is now, instead, to protect a “homeland”, that would mean restoring the rights of the Native Americans to the entirety of the US.

This is a rather difficult thing to wrap one's mind around, but I think this statement pretty well sums up the argument:

If the federal government claims that the US is a nation of natives rather than immigrants, that test is no longer met. If the federal government no longer asserts the principle on which its own sovereignty is based, no longer sustains the Doctrine of Discovery. Following Marshall’s reasoning, Native Americans would then have, in his words, a “legal and just claim to retain possession” of what is now the United States of America.

BTW, this article was written by "Timothy Snyder is the Levin professor of history at Yale University. He is the author, most recently, of The Road to Unfreedom: Russia, Europe, America."

This line of logic brings up some interesting scenarios. Its doubtful that the US Government even "could" cede all of the US lands back to the various Native Tribes without causing self-extinguishment, but..............it certainly could cede broad swathes of land back to the "First Nations" such as all of the National Parks. It might as well force States to cede all of the State Parks back to the Native American inhabitants. Perhaps, in the final analysis, the US Government could cede all lands but for the Agenda 21 Corridors of acceptable human habitation?

Have fun with this one!

I think it will hold up in court about as well as the sovereign citizen nonsense.

+/- a snowball's chance in hell.

a reply to: TonyS

No mumbo jumbo will ever make that happen.

a reply to: OccamsRazor04

Never say never: they keep trying!
newsmaven.io...

The Oneida Indian Nation of New York and the U.S. government have asked the U.S. Supreme Court to review a 2nd Circuit Court of Appeals decision that denied the nation’s right to reclaim land illegally taken by the state of New York or be compensated for it. The appeals court denial conflicts with an earlier Supreme Court ruling that supported the nation’s claim for compensation. In the original lawsuit filed against New York state’s Madison and Oneida counties in 1974, the Oneida Indian Nation claimed 250,000 acres of ancestral lands and relief going back more than 200 years when the lands were conveyed in multiple transactions to the state of New York. The transactions were illegal under the 1790 Indian Trade and Intercourse Act, commonly referred to as the Nonintercourse Act, that prohibits Indian lands from being sold or otherwise transferred without the approval of Congress.

I believe SCOTUS ruled against them...............but they'll keep trying, of that I am sure.

From what I understand, the Native Americans didn't have the legal concept of what we call "property." Not like the Europeans. They may have migrated through it, hunted on it, and built huge mounds on it, but they never really considered that they somehow owned the land. On top of that, more than one tribe would often inhabit the same area, and the tribe that was on the land when the Europeans showed up might have fought and run the original inhabitants out of it. We could go all the way back to the Clovis people, but they were pretty much long dead by the time the Europeans invaded.

So who exactly would the US Government "give it back" to? The tribe that was on the land but never really considered it their property in the first place? The tribe that drove the original inhabitants off, or killed them?

a reply to: TonyS

That's not the same argument, and if anything it will be some small compensation.

a reply to: Blue Shift

The tribe that drove the original inhabitants off, or killed them?

Could be as simple as "who's left"?

a reply to: TonyS

The way I see it, the natives were conquered and lost there land to the invaders. There is nothing to give back the lost it when. They couldn't stop the invasion. Doctrine of discovery truly is pointless in this day and age.

a reply to: cognizant420

Its really a question of how the courts will see it. I think the point of the Guardian article is that the Feds have made a truly serious "blunder" by abrogating the idea that the US is a "nation of immigrants" because that was the underlying principle behind the Discovery Doctrine.

originally posted by: TonyS
a reply to: Blue Shift

The tribe that drove the original inhabitants off, or killed them?

Could be as simple as "who's left"?

Well, that's us!

a reply to: TonyS

I fail to see the problem. They were conquered, it wasnt simple immigration it was an invasion. Millions were wiped out. The USA owns the land not any natives. Alls fair in war.

a reply to: TonyS

We were invaders before immigrants and to this day the USA is still invading other counties. Pretty.much been at war since its formation.

a reply to: Blue Shift

We are descendants of the invaders; never seen as heirs to the "Native" and never considered "Native".

a reply to: Blue Shift

From what I understand, the Native Americans didn't have the legal concept of what we call "property." Not like the Europeans

You are wrong.

The degree of private ownership reflected the scarcity of land and the difficulty or ease of defining and enforcing rights.

Because agricultural land required investments and because boundaries could be easily marked, crop land was often privately owned, usually by families or clans rather than individuals. For example, families among the Mahican Indians in the Northeast possessed hereditary rights to use well-defined tracts of garden land along the rivers. Europeans recognized this ownership, and deeds of white settlers indicate that they usually approached lineage leaders to purchase this land. Prior to European contact, other Indian tribes recognized Mahican ownership of these lands by not trespassing.

fee.org...

originally posted by: cognizant420
a reply to: TonyS

I fail to see the problem. They were conquered, it wasnt simple immigration it was an invasion. Millions were wiped out. The USA owns the land not any natives. Alls fair in war.

You are quite at ease then with Russia's occupation of Crimea and China's occupation of Tibet ?

I am more Native American than Liz Warren so where do I sign up?

originally posted by: alldaylong

originally posted by: cognizant420
a reply to: TonyS

I fail to see the problem. They were conquered, it wasnt simple immigration it was an invasion. Millions were wiped out. The USA owns the land not any natives. Alls fair in war.

You are quite at ease then with Russia's occupation of Crimea and China's occupation of Tibet ?

Do you want to go to war to take the land back?

And didn’t the different tribes have a “warrior” class? And the tribes used to fight for territorial control of different regions?

A little far south, but isn’t there a history of Incan cities wiping each other out. Oh, the days of taking prisoners and sacrificing them. Wonder if we should charge current Incan descendants with war crimes? Or was it the Aztecs?

originally posted by: alldaylong

originally posted by: cognizant420
a reply to: TonyS

I fail to see the problem. They were conquered, it wasnt simple immigration it was an invasion. Millions were wiped out. The USA owns the land not any natives. Alls fair in war.

You are quite at ease then with Russia's occupation of Crimea and China's occupation of Tibet ?

People conquer and take lands all the time. The issue is how far do you go back?

What happened to the Native American sucks, but that is history and it's over with. It was a different time. Like someone else mentioned, Native Americans weren't sitting around a campfire singing kumabaya either. They took lands from someone else too.

Crimea and Tibet are a little different as these are modern conflicts and people's sense of sovereignty and right/wrong are different. So no, it isn't hypocritical to oppose current day annexation.

Funny it’s about “justice” when there is a whiff of profit..........

originally posted by: Nickn3
I am more Native American than Liz Warren so where do I sign up?

Me too! Gimme my land! Gimme gimme gimme

In all seriousness, for those that say So what, we invaded and they lost...remember history repeats itself.
Sometimes invasions are not so violent. We'll see what modern day "natives" feel about that in 20 or so years.