Legal Rights of Indigenous Peoples under US and International Law Sarah Krakoff, Moses Lasky Professor of Law University of Colorado Law School Sarah.Krakoff@Colorado.edu

Class 02: Historical Foundations of US Law, cont. Review of yesterday American Indian law is: US law that recognizes and limits American Indian tribal sovereignty. What is American Indian tribal sovereignty? Powers of self-government not derived from any outside source Limited by history of colonization and folding US Indigenous peoples into US legal order

Review, cont. History of Legal Concepts behind colonization and settlement Crusades Colonization Exploration and “discovery;” Evolving theories of discovery (de Victoria) Treaty-making

Class 02: Emergence of US American Indian Law Pre-Revolutionary Period in North America --French and Indian War (1753-1760) --British Crown’s Proclamation of 1763 --Treaty Making by Independent States

Post-Revolutionary Developments After 1776) Articles of Confederation Federal government and states share power over Indian affairs Northwest Ordinance of 1787 U.S. Constitution, Article 1, Sec. 8, cl. 3: “Indian commerce clause”

Themes from Pre-Revolution and Revolutionary Period Consolidation of Power in a central government Proclamation of 1763, Northwest Ordinance, US Constitution Identification with/romanticization of American Indians Treaty-making

Johnson v. Macintosh (1823): US adopts the discovery doctrine Land dispute between two non-Indians The legal issue: Can Indian tribes convey full legal title to property to any purchaser? The answer: No. “Discovery” by European nations split Indian title; the US stepped into the shoes of England in this regard.