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Sir: I have your favor. Without date. I have written to Congress and enclosed your Memorial respecting Capt. Joseph Louis Gill to them. Until I obtain their answer, I have, by the enclosed given General Bailey directions to supply the Indians with provision. Enclosed you have a Warrant for 100 Dollars in your favor. which sum your paymaster may give to Captain Louis and receive from the Military Chest upon the Warrant the first time he has occasion to transact any Business with the pay Master General. I will inform the Qr. Mr. Genl. of what you say respecting the practicability of laying up forage at Coos. I am, etc. Buffalo Law Review Questions about Enrollment? Copyright (c) 1994 Buffalo Law Review Buffalo Law Review Winter, 1994 42 Buffalo L. Rev. 77 WHEN HISTORY OUTWEIGHS LAW: EXTINGUISHMENT OF ABENAKI ABORIGINAL TITLE John P. Lowndes SUMMARY: ... The doctrine of aboriginal title, by which many American Indian tribes hold possessory rights to their traditional lands, was recently dealt a serious blow by a Vermont Supreme Court decision. ... The Vermont court's decision not only breaks with the rule that a tribe must consent to extinguishment of its aboriginal title, but also rejects the requirement that the dominant sovereign must express its intent to extinguish title with a "plain and unambiguous action." ... This Article focuses on the issues surrounding Indian, or "aboriginal," title, particularly the right of the sovereign to extinguish aboriginal title. ... Finally, the Article argues that the "increasing weight of history" rule abandons aboriginal title doctrine by ignoring the extinguishment touchstones of clear sovereign intent and Indian consent. ... Aboriginal title doctrine is comprised of a set of rules, easy in comprehension: only the dominant sovereign can extinguish; to do so it must take a plain and unambiguous action demonstrating intent; and the native occupants must consent to the extinguishment. ... While the "increasing weight of history" rule led to a corruption of the sovereign intent requirement, it completely precluded consideration of the other crucial element of aboriginal title doctrine -- Indian consent. ... The Vermont court's abandonment of the Indian consent requirement derives chiefly from Justice Douglas' "conquest" dicta in Walapai Tribe. ... TEXT: [*77] INTRODUCTION The doctrine of aboriginal title, by which many American Indian tribes hold possessory rights to their traditional lands, was recently dealt a serious blow by a Vermont Supreme Court decision. In State v. Elliott, n1 the Vermont court held that the title of the Abenaki tribe to its ancestral lands in northwestern Vermont had been extinguished by what it called "the increasing weight of history." n2 This controversial decision n3 marks a clear departure from the longstanding aboriginal title doctrine expounded in the early nineteenth century by Chief Justice John Marshall and the United States Supreme Court. n4 The Vermont court's decision not only breaks with the rule that a tribe must consent to extinguishment of its aboriginal title, n5 but also rejects the requirement that the dominant sovereign must express its intent to extinguish title with a "plain and unambiguous action." n6 The Vermont Supreme Court's holding that the "increasing weight of history" alone can terminate Indian title disposes of the rule of law, and replaces it with a selective reading of the conqueror's history. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 State v. Elliott, 616 A.2d 210 (Vt. 1992), cert. denied, 113 S. Ct. 1258 (1993). n2 Id. at 218. n3 See Judith Gaines, The Supreme Court Rejects Abenaki Appeal, BOSTON GLOBE, Feb. 23, 1993 (Metro) at 17 (describing the decision as a "major blow to the fight for Native American self-determination" and quoting Hopi lawyer and co-founder of the Indian Bar Association Frances Jue as saying the decision is a "further erosion of tribal sovereignty"). n4 See discussion infra sections II.B-II.D.1. n5 See discussion infra section II.D. n6 See discussion infra section II.E. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - This Article focuses on the issues surrounding Indian, or "aboriginal," title, particularly the right of the sovereign to extinguish aboriginal title. It examines the Elliott court's "increasing weight of history" theory, and demonstrates its incompatibility with the established law concerning aboriginal title. Part I discusses Abenaki history in upper New England and the tribe's relations with immigrating non-Indians from the time of first European contact to the present. Part II traces the development of aboriginal title and extinguishment doctrine from its first articulation by the Marshall [*78] Court through its elaboration in significant cases over the course of more than 180 years. Part III analyzes Elliott and compares its holdings with the aboriginal title standards first established by the Marshall Court and upheld by the Supreme Court as recently as 1985. n7 Part III argues that the historical standard used in Elliott is really no standard at all. Because it permits such flexibility of interpretation, this standard allows the court to find extinguishment in a series of events that individually would not rise to that level. Finally, the Article argues that the "increasing weight of history" rule abandons aboriginal title doctrine by ignoring the extinguishment touchstones of clear sovereign intent and Indian consent. The "increasing weight of history" test imposes a standard that American Indians can rarely meet, and is itself a conclusion which repudiates the doctrine of aboriginal title. For these reasons, courts which hereafter consider aboriginal title cases should take the opportunity to expressly reject Vermont's "increasing weight of history" rule as an unsound and dangerous departure from aboriginal title doctrine. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n7 See County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) (Oneida II). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - I. HISTORICAL BACKGROUND The Missisquoi Abenakis are a tribe of about 2,600 living mainly in northwest Vermont near the shores of Lake Champlain, not far from the Canadian border. n8 Though they have participated in federal Indian programs and have received federal funds, n9 the Abenakis are not a federally recognized tribe and they do not live on a demarcated reservation. n10 Most live in the predominantly white towns of Swanton, Highgate, and St. Albans. n11 Vermont popular lore has long characterized the Abenakis as nomads from Canada and relative newcomers to the area. n12 This myth was cultivated by eighteenth-century land speculators like Revolutionary War hero Ethan Allen, who had everything to lose and nothing to gain by recognizing [*79] the Abenakis' ancient land claims. n13 The Abenakis also fueled this misapprehension with their hard-learned survival strategy of "going underground" to avoid conflict with European colonists and armies. n14 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n8 State v. St. Francis, No. 1171-10-86 Fcr, slip op. at 32 (Vt. Dist. Ct., Franklin Cir. Aug. 11, 1989). n9 Id. at 33 (noting that the Abenakis created the Abenaki Self-Help Association [ASHAI] in the early 1970's, and through that organization have received federal funds designated exclusively for American Indians. Abenaki Acres is a low-income housing project that was jointly conceived by the Missisquoi tribe and ASHAI). n10 Robert Lucido, Aboriginal Title: Abenaki Indian Land Claim in Vermont, 16 VT. L. REV. 611, 623-25 (1992). n11 St. Francis, slip op. at 32. It is estimated that eighty to ninety percent of the Missisquoi Abenakis currently live in their traditional homeland. Id. In the Back Bay neighborhood of Swanton, forty to sixty percent of the population is Abenaki. Id. n12 See Fishing Case Unites Divided Tribe, N.Y. TIMES, Sept. 7, 1987, @ 1, at 24 (stating that Vermont does not recognize the Abenakis as a tribe and that Vermonters have long maintained that the Abenakis were visitors, not settlers, in their state). n13 See COLIN G. CALLOWAY, THE WESTERN ABENAKIS OF VERMONT, 1600-1800 225-30 (1990) [hereinafter CALLOWAY] (describing the efforts of Ethan Allen, leader of the fabled Green Mountain Boys, and his brother Ira, both immigrants from Connecticut heavily invested in Vermont real estate, to dispossess the Abenakis of their Missisquoi homeland). In the 1780's and 1790's, Ethan Allen kept pressure on the New Hampshire governor to deny Abenaki land rights in Swanton, claiming that the Abenakis were invaders from Canada. Id. at 225-26. To punctuate this claim Allen called the Missisquoi Abenakis "St. Francis Indians" after a French Catholic mission across the border in Quebec where many Abenakis lived. Id. at 228. Nevertheless, large numbers of Abenakis were reported to have remained in open occupation of the lands around Swanton into the 1790's. Id. at 230. n14 See St. Francis, slip op. at 17 (stating that "[i]n dealing with Europeans the Missisquoi have tried to remain as inconspicuous as possible, dealing through a few front families"); see also CALLOWAY, supra note 13, at 226 (observing that the Abenakis' formerly successful method of "strategic withdrawal" disserved them in the late 1700's by fostering the impression that they had abandoned their lands); Peter Anderson, We Want Vermont, BOSTON GLOBE, Dec. 16, 1990 (Magazine) at 20 (observing that a historian testified at the fish-in trial that the Abenakis periodically went "underground" to avoid European-introduced contagious diseases and conflict). Homer St. Francis, the Abenaki Chief, and Gabor Rona, a lawyer for the tribe, both contend that the state sponsored forced sterilization of the Abenakis in the 1930's during the "eugenics" craze and that many families "disappeared." Id. This abuse drove Abenakis further underground and finally extinguished the use of their language for fear of being singled out and persecuted. Id. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In the past decade, however, historians have debunked the myth of the latecoming or disappearing Abenaki. n15 Archeological, anthropological, and archival research shows that the Abenakis and their forebears have continuously occupied the area for 11,000 years. n16 Abenakis and related tribes once densely settled northern New England, n17 with the Abenakis numbering perhaps 10,000 in Vermont and western New Hampshire in 1600. n18 Allied with the French, the Abenakis launched devastating raids from their Missisquoi village against encroaching English settlers in the early [*80] 1700's. n19 They played an important role in the French and Indian War n20 and fought on both sides in the American Revolution. n21 Thereafter, the Abenaki population declined precipitously due to war, disease, and heavy non-Indian immigration. n22 White settlement eventually confined the Abenakis to the small corner of Vermont which they now occupy. n23 The Abenakis, however, never signed a treaty with the United States government surrendering any of their ancestral lands in Vermont. n24 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n15 See St. Francis, slip op. at 12 (stating that the "'ethnocentric historical juggernaut' that pressed for a conclusion that the Missisquoi had abandoned their homeland was fueled by fantasy"); see also Abenakis Vote in Crucial Election, UPI, Sept. 11, 1987, available in LEXIS, Nexis Library, Omni file (noting that until recently, historians believed the Abenakis were newcomers, though new scholarship demonstrates that they are the area's oldest settlers); see generally CALLOWAY, supra note 13; COLIN G. CALLOWAY, DAWNLAND ENCOUNTERS: INDIANS AND EUROPEANS IN NORTHERN NEW ENGLAND (1991). n16 State v. Elliott, 616 A.2d 210, 214 (Vt. 1992), cert. denied, 113 S. Ct. 1258 (1993); see also CALLOWAY, supra note 13, at 6-10. n17 Lucido, supra note 10, at 630. n18 CALLOWAY, supra note 13, at 10. In addition to the Missisquoi, Abenaki groups inhabiting the region included the Sokokis, Cowasucks, Pennacooks, Winnipesaukees, and Pigwackets. Collectively, these groups are known as the western Abenakis. Id. at 7. n19 See id. at 113-31 (describing Grey Lock's War, 1723-1724, in which the charismatic Abenaki chief Grey Lock led raids against English settlements from Vermont to central Massachusetts. The war finally died out, with several Abenaki tribes signing peace treaties, though Grey Lock's Missisquoi never surrendered.). n20 Id. at 161-82; State v. St. Francis, No. 1171-10-86Fcr, slip op. at 20-21 (Vt. Dist. Ct., Franklin Cir. Aug. 11, 1989). n21 CALLOWAY, supra note 13, at 204-23; St. Francis, slip op. at 27-28. n22 CALLOWAY, supra note 13, at 238. n23 Id. at 228-30; St. Francis, slip op. at 16. n24 St. Francis, slip op. at 16. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Beginning in 1979, many Abenakis finally abandoned their lowprofile survival strategy and asserted their sovereignty against the State of Vermont. n25 Abenakis staged "fish-ins" on the Missisquoi River in Swanton, inviting arrest and prosecution from game wardens for fishing without a state license. n26 The anglers claimed a traditional right to fish the Missisquoi River, which they maintained was "Indian country," free from state regulation. Led by a flamboyant and confrontational chief, n27 Abenakis also served self-generated eviction notices on local and state authorities, claiming $ 100 million in back rent. n28 They issued their own license plates, and counter-ticketed [*81] police who delivered traffic citations. n29 This aggressive strategy for securing a recognized Abenaki homeland stirred up much publicity and some anxiety in Vermont throughout the 1980's, while Indians and non-Indians alike awaited a judicial resolution of the issue. n30 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n25 See New Chief Lends Militancy to Vermont Tribe, N.Y. TIMES, Sept. 13, 1987, @ 1, at 45 (noting that the lawyer who represented the Abenakis in their eight-year fishing regulation battle regarded the election of Chief Homer St. Francis (the defendant for whom the original court case is named) as a sign of "increased militancy" and an end to the traditional Abenaki "low-key approach"). See also CALLOWAY, supra note 13, at 248-51. n26 See Indians Confront 20th Century Government, UPI, Oct. 19, 1987, available in LEXIS, Nexis Library, Omni File (quoting Chief Homer St. Francis as saying, "[w]e're fed up . . . . Our constitutional rights are being violated every day. The only way we can bring this thing to a head is to go out and break the law."). n27 See Militant Elected Chief of Abenakis, UPI, Sept. 14, 1987, available in LEXIS, Nexis Library, UPI File (quoting newly-elected Chief Homer St. Francis as saying, "Now I break out my war belt, my medicine belt, my eagle feathers and sacred pipe and go to war to get back the land white men stole from my people . . . . Tomorrow I'm going hunting. Monday I clean house."); see also Anderson, supra note 14, at 20 (observing that St. Francis, a former Marine, had a long-running animosity with local and state police and that his strategy for winning an Abenaki homeland included provoking state actions so that the tribe could defend on sovereignty grounds in court). n28 Sally Johnson, Abenakis' Chief Pursues Cause Through Conflict, N.Y. TIMES, Oct. 2, 1988, @ 1, at 46. n29 See id. (observing that when the Swanton police chief impounded Chief Homer St. Francis' truck for bearing Abenaki Nation instead of Vermont plates, St. Francis brought the matter before the Abenaki tribal court which fined the local police chief $ 500 for harassing St. Francis. As the tribal court is not recognized by anyone but the Abenakis, the police chief refused to pay.). n30 See id. (observing that the chief's combative tactics have cost him much support among the Abenakis). See also Tribe Plans Another "Fish-in", UPI, Oct. 15, 1987, available in LEXIS, Nexis Library, Omni File. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - The state dropped charges stemming from the first two fish-ins, n31 but it prosecuted thirty-six Abenakis in the third, and lost. n32 In 1989, a state district court judge dismissed the case for lack of subject matter jurisdiction. n33 In his comprehensive ninety-six-page opinion, Judge Wolchik held that the Abenakis were not subject to state fishing regulations on the Missisquoi because aboriginal title to the area had never been extinguished. n34 With this decision in hand, the Abenaki chief hinted that the tribe might file a land claim that would encompass one-third of all New England. n35 In the 1992 decision of State v. Elliott, however, the Vermont Supreme Court reversed the district court, and found that Abenaki aboriginal title to the area had long ago been extinguished by the "increasing weight of history." n36 Several months later the United States Supreme Court declined to issue a writ of certiorari to hear the Abenakis' appeal, thereby letting the decision stand. n37 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n31 See New Chief, supra note 25, at 45 (noting that the prosecutor said he dropped the charges both times because the complexity of the case required more legal attention than he could provide). n32 State v. St. Francis, No. 1171-10-86Fcr (Vt. Dist. Ct., Franklin Cir. Aug. 11, 1989). n33 Id. n34 Id., slip op. at 1. n35 See Judith Gaines, Tribe to Claim One-Third of New England, BOSTON GLOBE, Aug. 10, 1990, (Metro/Region Section) at 1 (stating that the Abenakis intended to bring a federal land claim for "all of Vermont, all of New Hampshire, and parts of northern Massachusetts, western Maine, upstate New York and southern Quebec"). n36 616 A.2d 210, 218 (Vt. 1992). n37 113 S. Ct. 1258 (1993). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - II. ABORIGINAL TITLE DOCTRINE A. Background Upon the arrival of European colonists in North America, two competing views of international law informed their desire for land [*82] occupied by American Indians. These views had been constructed over centuries of European commercial and evangelical contact with other parts of the world. The first was grounded in chauvinism and racism: it saw the native inhabitants as subhuman heathens, undeserving of the bountiful lands they occupied. n38 Under this paradigm, Indian nations had no right to sovereignty and were automatically subject to the conquering European power. n39 The second view recognized the sovereignty, if not the equality, of Indian nations. This school held that Indians were entitled to their lands by natural law n40 and the law of nations. n41 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n38 See Robert A. Williams, Jr., The Algebra of Federal Indian Law: The Hard Trail of Decolonizing and Americanizing the White Man's Jurisprudence, 1986 WIS. L. REV. 219 (arguing that the European colonizing spirit was rooted in the medieval Catholic Church's notions of unity and hierarchy which held that reason sprung only from the Catholic Church and that all outside of it were infidels unworthy of recognition). See also Howard R. Berman, The Concept of Aboriginal Rights in the Early Legal History of the United States, 27 BUFF. L. REV. 637, 638-42 (1978) (discussing the arguments of John Quincy Adams that Indian title could not be supported by the common law; and noting that in Vattel's The Law of Nations, the proposition that the taking of Indian land by virtue of cultural superiority was well supported). n39 Williams, supra note 38, at 254-58. n40 See Gordon I. Bennett, Aboriginal Title in the Common Law: A Stony Path Through Feudal Doctrine, 27 BUFF. L. REV. 617, 619 (1978) (stating that in Roman law, possessory title was deemed so fundamental as to be natural law, and that such title was in itself proof of ownership and immune from challenge). n41 See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 51-52 (Rennard Strickland et al. eds., 1982) [hereinafter COHEN, HANDBOOK]. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Francisco de Vitoria, an influential sixteenth-century Spanish scholar, best exemplified this second school of thought. Vitoria rejected chauvinistic European title claims which were based on divine right or superior civilization. n42 He instead based his doctrines of title succession on the principle of consent. n43 According to Vitoria, Europeans could not purchase or settle on Indian land without consent of the owners. n44 These principles of native sovereignty and [*83] property rights were often reflected in the North American colonists' attitudes and practices toward American Indians, n45 and helped shape early American Indian law. n46 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n42 Id. at 50-52. n43 Id. at 53. n44 Id. at 51, 53. Vitoria argued not only that consent was required for transfer of title from the Indians, but that the Indians, ignorant of the methods and designs of Europeans, were ill-equipped to give it. Id. Vitoria insisted that any consent must be fully informed and freely given: Fear and ignorance, which vitiate every choice ought to be absent. But they were markedly operative in the cases of choice and acceptance under consideration, for the Indians did not know what they were doing; nay, they may not have understood what the Spaniards were seeking. Further, we find the Spaniards seeking it in armed array from an unwarlike and timid crowd. Seeing, then, that in such cases of choice and acceptance as these there are not present all the requisite elements of a valid choice, the title under review is utterly inadequate and unlawful for seizing and retaining the provinces in question. Id. at 51 n.10 (quoting Francisco de Vitoria, De Indis et de Iure Belli Relectiones (J. Bate trans.) Carnegie Institution 1917 (1557)). Of course, this principle was not reflected in reality during the conquest of America. Conquistadors often enslaved Indians and appropriated their land. Id. at 52. But those conquerors were operating outside of the law. The policy as set by the king and the Pope clearly delineated native rights. Id. Sadly, the conquistadors, by virtue of geographic distance, were a law unto themselves. Id. n45 Id. at 53-62. "The English, like the Spanish and Dutch, uniformly acknowledged Indian title to lands actually occupied or improved by the Indians." Id. at 54-55 (citations omitted). n46 Id. at 52. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - As Europeans purchased land from the original inhabitants, there therefore remained the question of what property rights they were buying. It was unclear whether the Indian tribes were selling rights in fee simple absolute n47 or only possessory interests. n48 Questions inevitably arose concerning the validity of the whites' purchases and the rights of Indians to alienate their property. The doctrine of aboriginal title, drawing on both Vitoria's consent theory and centuries-old European chauvinism, was created to solve these problems. n49 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n47 See BLACK'S LAW DICTIONARY 615 (6th ed. 1990) (defining fee simple absolute as an estate in property to which the owner is entitled without limitation and with unconditional power to dispose of it as he or she chooses). n48 See id. at 1165 (analogizing this interest to the right of a tenant for years, or one which gives the possessor a certain degree of physical control over the land including the right to exclude others from any present occupation of the land). n49 Without any change in definition, this doctrine has been called by several names: "Indian title," "original Indian title," "native title," and "aboriginal title." For simplicity's sake and in keeping with the modern trend, this Article will use the term "aboriginal title," except where otherwise required by textual reference. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - B. Introduction of Aboriginal Title Doctrine The doctrine of aboriginal title was elaborated in a string of cases decided by the Marshall-era Supreme Court. n50 With virtually no constitutional guidance in the area, n51 the Court strove to create a method of determining the scope of Indian property rights and sovereignty. Perhaps more importantly, however, the Court needed to [*84] articulate a principle for title succession in a young country which was acquiring real estate at a staggering rate. n52 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n50 Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823); Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835). n51 See U.S. CONST. art. I, @ 8, cl. 3. "The Congress shall have Power To . . . regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Id. Except for the commerce clause reference to "Indian Tribes," the only mention of American Indians in the United States Constitution is the provision that "Indians not taxed" are not to be counted when tallying state populations for the purpose of apportioning representatives in Congress. Id. at art. I, @ 2, cl. 3; amend. XIV, @ 2. n52 See Felix S. Cohen, Original Indian Title, 32 MINN. L. REV. 28, 34 (1947) [hereinafter Cohen, Original Indian Title] (noting that the United States bought more than two million square miles of territory from American Indians over a period of 150 years). - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - In 1810, the Marshall Court first faced the issue of Indian property rights in Fletcher v. Peck. n53 Fletcher did not involve Indian interests directly; rather, the case concerned the property rights of whites to whom Indian land had been conveyed. Particularly, the Court questioned whether the state of Georgia could legitimately convey to a speculator lands possessed by Indians. n54 The majority in Fletcher held that the state did have the power to convey that which it did not own entirely. Chief Justice Marshall asserted that "Indian title" vested possessory rights in the native inhabitants while simultaneously leaving ultimate ownership in the state. n55 Without elaboration, the Chief Justice thus split the property rights between Indians and the dominant sovereign, n56 leaving Georgia with paramount title, including the right to convey Indian land. n57 At the same time, Chief Justice Marshall introduced the concept of "Indian title" into American jurisprudence, acknowledging the existence of American Indian possessory interests in their ancestral lands. n58 The decision also held that, within its territory, the United States was the only sovereign entity with the power to extinguish Indian title. n59 - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n53 10 U.S. (6 Cranch) 87 (1810). n54 See Jill Norgren, Protection of What Rights They Have: Original Principles of Federal Indian Law, 64 N.D. L. REV. 73, 83-87 (1988) (describing the Fletcher case as a "squabble among thieves," relating to "aggressive, and fraudulent, speculative schemes in western [American Indian] land claimed by the state of Georgia"). While the land was occupied by Georgia tribes, the state had sold the lands to a private company and the land subsequently changed hands resulting in a conveyance from Peck to Fletcher. Id. n55 Fletcher, 10 U.S. (6 Cranch) at 142-43. n56 See Berman, supra note 40, at 642 (noting that in the context of the entire opinion, the concept that split the property rights between the state government and the Indians in possession seems to have sprung full-blown from a single sentence). The concept of split title has been called "a mere naked declaration, without any discussion or reasoning by the court in support of it." Id. (quoting 3 JAMES KENT, COMMENTARIES ON AMERICAN LAW 379 n.(c) (Philadelphia, Blackstone New York 1889) (1826)). It appears, however, that the "declaration" was steeped in the discovery doctrine. Id. at 642. While it had not been explicitly introduced into U.S. common law, the discovery doctrine was a well-established principle of international law. Id. n57 Id. at 641. n58 Norgren, supra note 54, at 84. n59 Berman, supra note 38, at 641. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - While the Fletcher Court did a remarkable job of accommodating the various interests involved, it posed more questions than it answered regarding Indian law. The decision did not explain what legal or equitable rights aboriginal title left in the Indian inhabitants, n60 [*85] nor did it explain what constituted legitimate extinguishment of those rights by the sovereign.
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