"It is a gem of religious racism that fully documents the illegitimate foundation of U.S. Indian law and policy.
We now have conclusive evidence: In a legal brief filed in the case Tee Hit Ton, the United States government traced the origin of Indian title in U.S. law to the ideology that discovering Christian sovereigns had the right to take over and acquire the lands of “heathens and infidels.”
Simon E. Sobeloff, solicitor general of the United States, Perry M. Morton, assistant attorney general of the United States, as well as Ralph A. Barney and John C. Harrington, attorneys at the Department of Justice, authored the brief.
The Tee Hit Ton case was brought by the Tee Hit Ton Indians, a Tlingit people, to recover damages to their lands caused by the United States. The lands had been declared by Congress to be the Tongass National Forest. In a joint congressional resolution, dated August 8, 1947, Congress authorized the U.S. secretary of agriculture “to sell timber growing on any vacant, unappropriated, and unpatented lands within the Tongass National Forest in Alaska, notwithstanding any claim of possessory rights.”
The United States responded to the Tee Hit Ton complaint by stating: “It is a well established principle of international law with respect to the lands of this continent [that] ‘discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments which title might be consummated by possession.’” Here the attorneys for the United States cited Johnson v. M’Intosh, from which they lifted the quoted language.
The U.S. brief stated further that “the discovering nations asserted in themselves, by virtue of the principle of discovery, the complete and exclusive title to the land – subject only to a right of occupancy in the Indians.” Such an Indian right of occupancy, said the U.S. attorneys was “being retained by the Indians only by the grace of the sovereign.”"
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