Greg Ablavsky Commentary on Upper Skagit Decision

Gregory Ablavsky has posted “Upper Skagit v. Lundgren: Deceptively Straightforward Case Raises Fundamental Questions about Native Nations, History, and Sovereignty” on Stanford Law School’s blog.

Here are excerpts:

This decision provoked the ire of Justice Thomas, who, in a lengthy dissent, insisted that the immovable property exception did apply to tribes.  Thomas’s rationale involved a deep dive into the history of international law, citing the principle’s enunciation not just in such well-known staples as Vattel’s 1758 Law of Nations but also in deep cuts like the works of Cornelius van Bynkershoek and Bartolus of Sassaferatto. (Sadly for connoisseurs of elaborately named international-law treatise writers, Samuel von Pufendorf failed to make the cut). Columbia’s Ronald Mann, writing in ScotusBlog, called this dissent a “tour de force of historical arguments.”

I’m not so convinced.  Although I’m on record sharply questioning Justice Thomas’s constitutional history in Indian law more generally, I agree with Thomas that the immovable property exception has deep roots in international law.  But I question his blithe assumption that the same principle did, or should, apply to tribes.

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One consequence of Marshall’s ruling that tribes were “domestic dependent nations” was that Native nations were deprived the benefits of international law—including the immovable property exception.  The history of U.S. westward expansion is largely the history of one sovereign—the United States—purchasing land within the territory of other sovereigns—Native nations.  Yet, notwithstanding Thomas’s “six centuries of consensus” on the issue, the United States did not believe these purchases subjected these lands to tribal courts and law; it assumed that it now had jurisdiction as well as ownership over the land.  And this was an assumption: unlike the transfers from France in the Louisiana Purchase or Mexico in the Treaty of Guadalupe Hidalgo, for instance, which explicitly stated that they conveyed sovereignty as well as title, most Indian treaties spoke only of the boundaries of the land sold.  There is, then, a bitter irony in Thomas’s invocation of Bushrod Washington’s 1824 statement that “the title to, and the disposition of real property, must be exclusively subject to the laws of the country where it is situated”—an irony only heightened when we recall that Marshall had decided Johnson v. M’Intosh, which unambiguously rejected that principle with respect to Native peoples, a year before.

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