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Sovereign Bargains, Indian Takings, And The Preservation Of Indian Country In The Twenty-First Century, Raymond Cross
Sovereign Bargains, Indian Takings, And The Preservation Of Indian Country In The Twenty-First Century, Raymond Cross
Faculty Law Review Articles
This article develops a modern Indians taking doctrine by critically examining the unfolding of Marshall's Indian bargaining model through three distinct eras: 1) Chief Justice Marshall's construction of the Indian bargaining model as an American adaptation of the European doctrine of discovery; 2) the Supreme Court's subsequent reformulation of that model as the Indian plenary power doctrine; and 3) the Court's failed reconciliation of the Indian plenary power doctrine with the just compensation command of the Constitution.
A sketch of such a doctrine is provided by a case study of the 1949 taking of the Fort Berthold Indian Reservation, a …