"In the 1923 case Cramer v. United States, the U.S. Supreme Court said “it has been the policy of the federal government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.” The category of title called “Indian right of occupancy” has otherwise been known as “original Indian title” and “Indian title,” as pointed out by Felix Cohen in his classic 1947 Minnesota Law Review article “Original Indian Title.”

In order to accurately interpret the concept of an Indian right or title of “occupancy” it is important to look behind that category and pay careful attention to the fact that the title of a conquering and dominating “sovereign” is the broader, and often little noticed context of what is termed the Indian title of “occupancy.”

In “Original Indian Title,” Cohen examined “The Doctrinal Origins of Indian Title.” As he put it: “The decisions on Indian title can hardly be understood unless it is recognized that dealings between the federal government and the Indian tribes have regularly been handled as part of our international relations.” He further said, “Our concepts of Indian title derive only in part from common law feudal concepts. In the main, they are traced to Spanish origins, and particularly to doctrines developed by Francisco de Vitoria, the real founder of modern international law.”

Vitoria, said Cohen, argued “that Indians were human beings and that their land titles were entitled to respect.” According to Cohen, implicit in Vitoria’s argument “is the doctrine that certain basic rights inhere in men as men not be reason of their race, creed, or color, but by reason of their humanity.”"

Get the Story:
Steven Newcomb: On the Indian title of ‘occupancy’ (Indian Country Today 4/2)

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