"There is nothing to prevent Congress, let's say, from creating interest in lands ownership interest or some sort of firm connection to lands that have to be respected by private parties and by the states," Duthu said.
Duthu denounced the legacy of the long entrenched "European discovery doctrine" that gave Christian nations the license to colonize non-Christian lands without the threat of interference from other Christian nations. In the United States, the doctrine allowed American settlers to colonize Native American lands and establish legal sovereignty, he said.
Making a rough sketch of the United States map, Duthu drew a bold line indicating the border of the British Proclamation of 1763, which was supposed to prevent further expansion West. Despite this demarcation, large syndicates and speculators alike were purchasing land from tribes without a clear sense of the legality of their land titles, Duthu said.
The legality of land purchases from tribes was brought before the Supreme Court in the 1823 Johnson v. McIntosh case, in which Chief Justice John Marshall ruled that legal land titles is granted only in those cases where tribes sell lands to the federal government, according to Duthu. The federal government gained sovereignty over the lands of Native Americans, thereby establishing the right to remove indigenous people from their ancestral lands, he said.
In 1820, the state of Georgia unilaterally removed Cherokee Indians from their ancestral lands, Duthu said. Georgia justified its actions by claiming sovereignty under the discovery doctrine, he said.
Duthu explained that explorers like Lewis and Clark "established structures to connote arrival and presence of new power" that effectively laid claim to Native American lands. Lewis and Clark's expedition to the Pacific, buttressed by Thomas Jefferson's affirmation to increase United States commercial advantage, instituted gradual reformation of Indian tribes "for their greatest good."
"Historically,that may have meant forcing them not to speak their languages anymore, practice their religions, living in communal land holdings," Duthu said.
Native American people had a different type of "attachment" to their environment than the colonizing Christian people, according to Duthu.
"There was an understanding that only civilized Christian people had a conception about owning land and using land properly," he said. "[Native Americans] were still hunting, fishing, trapping and gathering."
Duthu said he disagrees with activists who are calling on the Supreme Court to overturn the 1823 decision. He does not believe that Congress will feasibly pass legislation declaring the discovery doctrine contrary to American law practices, he said.
The legacy of the discovery doctrine and the 1823 Supreme Court ruling resonate in court rulings to this day, Duthu said.
"Even though the discovery doctrine may not be the rule of decision for a case, its offshoots are still very much involved with the way that formal legal decisions take place and it keeps tribes in a very subordinate position," Duthu said.
In the 1989 Vermont case of State v. Saint Francis, Judge Joseph Wolchik upheld the tribal rights of the Abenaki to hunt and fish in their ancestral lands, Duthu said. The Vermont Supreme Court, however, overturned that decision in State v. Elliot Abenaki under the premise that the aboriginal title was extinguished "by the weight of history," according to Duthu.
History and Native American studies professor Colin Calloway testified before the court in the State v. Saint Francis case and was present for Duthu's talk, although he did not speak during the lecture.
Even though the Vermont Supreme Court was unable to point to a distinct event in history when the title was extinguished, it nevertheless upheld that 200 years of history was sufficient to extinguish the title, Duthu said.
In a separate case in 2005, the United States Supreme Court declared that the purchase of ancestral lands did not grant Native American sovereignty over lands or immunity from state property taxes, Duthu said. The case City of Sherrill v. Oneida Indian Nation of New York underscored the paradox of requiring tribes to submit to the colonial process in order to establish sovereignty over their ancestral lands, according to Duthu.
"I understand sovereignty to be always rational so it's not absolute," he said. "In other words, it's to find that balance between living life consistent with traditional values but in a way that will not be disruptive to neighbors."
Duthu's address was the second installment of a two-part lecture series presented as part of Baker-Berry Library's exibition, "Lewis and Clark and the Indian Country."
