Peter d'Errico: Supreme Court decision and indigenous rights
Posted: Friday, February 3, 2012
"According to the common law, as the Jones opinions acknowledge, any unauthorized intrusion on private property is actionable (i.e., the owner can take legal action against the intruder). The Fourth Amendment to the U.S. Constitution was written with that context in mind; it says the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” As the majority opinion pointed out, a seizure of property occurs “when there is some meaningful interference with an individual’s possessory interests in that property.”
From an indigenous point of view, this is the most significant part of the Jones case; it has nothing to do with privacy and everything to do with property: specifically, the court affirmed a property right that was in place during the time of Christian colonization and said that right is still alive. More precisely, the court affirmed a property right that is completely contrary to the doctrine of Christian Discovery (i.e., that non-Christian “savages” could not own property, but only use it by permission).
As Professor Kent McNeil demonstrates in his immensely detailed 1989 book, “Common Law Aboriginal Title,” the common law doctrine of property would have protected Indigenous property rights against colonial claims in America, if it had been applied. The 1823 Supreme Court case of Johnson v. McIntosh refused to apply the common law, and developed the doctrine of Christian Discovery to justify this refusal. All the rest of federal Indian law grows from that doctrine, including the concepts of “wardship,” and “trust.”"
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