Publication Date

2004

Document Type

Article

Abstract

When Whites first came to North America, they encountered an indigenous population in relative balance with the land. It was not a perfect harmony, but was, nonetheless, capable of enduring indefinitely. Regardless of episodic instability caused by erosion, over-hunting, or deforestation, the distinguishing socio-economic facts were that the native peoples did not treat the land as a commodity or freely exploitable resource, they were not preoccupied with economic growth or personal gain, and they did not believe in human domination over the rest of the world. Instead, their central beliefs were balance and reciprocity. How were these subsistence communities and economics to survive the encounter with the Judeo-Christian belief in human transcendence, the relentless, calculated efficiency of the free market, capitalistic economy, the commodification of the land, and the enshrinement (and isolation) of the individual?

This Article deals with the legal development of individual aboriginal rights. It focuses on the Western Shoshone land claims before the Indian Claims Commission, and the federal government's trespass claims against the ranching operations of the Dann sisters. It then explores the development of the doctrine of individual aboriginal rights in a series of cases involving the Dann sisters, subsequent Western Shoshone, and other efforts by native people to secure subsistence hunting and fishing rights and possession or access to sacred sites. It then explores related concepts in western public land law. This suggests that custom, prescription, access under nineteenth century self executing right of way statutes, regulatory efforts, and administrative accommodation have provided at least some protection for the access of tribal peoples to sacred sites. Lastly, it speculates about the future expansion of such efforts, and the possibility that the growth of colorblind equal protection doctrine will spread into the area of Indian law and threaten what has been called the "measured separatism" of tribal sovereignty and property.

Publication Title

Michigan Journal of Race & Law

Volume

9

Issue

2

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