Albert Bender published on August 02, 2024, an article titled: The plunder, pillage, and robbery of the Five Tribes of Eastern Oklahoma, and highlights some of my research on heirship land titles and the theft of Indian land. I am proud to be mentioned in his article.
Albert Bender is a Cherokee activist, journalist, and former practicing attorney. The article makes a startling claim about the Doctrine of Discovery.
"The United States, in breaking from English rule, asserted that it inherited the policy of England toward Native nations. But the British Crown never advanced the Doctrine of Discovery in its relationships with Indigenous polities. So, how could the newly-minted United States inherit such a doctrine from Great Britain? The answer is it could not."
We know the British did not apply the Doctrine to the colonies. Tribes and governments that pre-date the United States and were within British territory are still considered today to have the aboriginal title of their original homelands. In other words, Britain did not consider itself the conqueror of the Indigenous people or that the tribes were a direct legal subject.
An example of this is in New York, the Oneidas. Aboriginal title is distinct from tribes or tribal members that own fee simple or occupy under federal trust "protections." Albert Bender points out, that the Doctrine was picked out of the dustbin by Justice Marshall in 1823 in Johnson v. McIntosh
Only those tribes victimized under the 1823 "judicial construct" created to justify taking land were considered removed, nonconsent-based on a false claim the Doctrine was a right by transfer from Britain to the United States. In fact, in looking back, the Doctrine was made to fit when it didn't. Still, it set into motion all the other abuses of the American Indian, including the creation of reservations and unilateral Acts of Congress that theoretically can change the direction of federal Indian Law. I say it is theoretical. Without the Doctrine, tribes in the United States would be equivalent to their counterparts in Canada or First Nations, which have retained both legal and beneficial titles to their original homelands. Any relinquishment of land must be by treaty or contract for value. Without the doctrine, Congress has no plenary powers over tribes and is a co-equal form of government with the tribes. Consultation between governments would be a right, not a promise.
We can discuss the implications of judicial overreach and fraud in another post. Let us save that for another day. However, the absence of discussion between Britain and the United States about the Doctrine is plain from reading the 1783 Treaty of Paris. The Treaty doesn't discuss any land beyond the 13 original colonies. At the time, the Ohio Valley was called the Northwest Territory.
This is reinforced by King George III's Royal Proclamation of 1763. The Royal Proclamation set policies to guide European Nations' settlement of aboriginal lands in North America. Royal Proclamation explicitly stated that Aboriginal title has existed and continues to exist, and that all land would be considered Aboriginal land until ceded by treaty. The Proclamation forbade settlers from claiming land from the Aboriginal occupants, unless it has been first bought by the Crown and then sold to the settlers. The Royal Proclamation further sets out that only the Crown can buy land from First Nations.
The United States did half of one and half of the other. In other words, U.S. federal Indian policy was based on deception, lack of consensual treaty-making, and general disrespect. The Trade and Intercourse Act of 1790 was the first law passed to manage trade between tribes and "settlers." By passing this Act, Congress proclaimed it had sole treaty-making authority without having a genuine desire to honor the aboriginal title or the proclamation of King George that formed the basis of the British colonies.
Handing Power to Local Racists
In Eastern Oklahoma, under the Act of 1908 (again, Acts of Congress are not possible under a scheme when aboriginal title is the recognized law of the land), the Department of Interior appeared to be divested of all jurisdiction over restricted estate probate processes. This is an oddity. The procedural rules in Oklahoma district courts were abolished in 1923 by the Oklahoma Supreme Court (See Albert Bender's article). It was blatant, and when procedural rules were annulled in Oklahoma, the Department of Interior couldn't claim it had no obligation to protect the wards, which the United States created when it accepted and benefitted from the Marshall Supreme Court decision, that falsely asserted the Doctrine of Discovery could be applied.
L“LTTTand ownership is at the heart of intergenerational wealth-building or lack thereof. Those who are the direct beneficiaries of the theft of NDN land and the intergenerational wealthy denied to the legal heirs have a debt to pay. I ask, why are there homeless NDNs? Where were the tribal governments as the allottees’ lands were illegally converted, and where are the tribes now for the individual NDN heir ownership is at the heart of intergenerational wealth-building or lack thereof. Those who are the direct beneficiaries of the theft of NDN land and the intergenerational wealthy denied to the legal heirs have a debt to pay. I ask, why are there homeless NDNs? Where were the tribal governments as the allottees’ lands were illegally converted, and where are the tribes now for the individual NDN heirs?”
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