HOW THE NEW DEAL BECAME A RAW DEAL FOR INDIAN NATIONS: JUSTICE STANLEY REED AND THE TEE-HITTON DECISION ON INDIAN TITLE

After he was appointed to the Supreme Court by Roosevelt in 1937, Justice Reed expressed a preference for deference to government and for judicial restraint in the use of constitutional provisions to limit the authority of the legislative and executive branches. [...]he began with a very questionable interpretation of earlier Supreme Court cases, starting with Chief Justice Marshall's celebrated decision in Johnson v. M'Intosh,10 which according to Reed, had held that Indian title is a non-proprietary right of occupancy. Relying on Fletcher, Marshall stated in Johnson that Indian title would bar an ejectment brought to acquire possession by the holder of the fee simple just as effectively as a lease for years.13 For Chief Justice Marshall, this meant that a grantee who acquired the fee simple from the state would not be able to obtain possession until the Indian title had been legitimately extinguished by the United States.14 In Johnson, Marshall opined that the colonizing European powers had agreed among themselves that "discovery" of new lands in North America gave the discovering nation sovereignty and the sole right to acquire Indian lands. For that to happen, the lands had to be brought within the territorial jurisdiction of the discovering sovereign, which according to Johnson, could be accomplished by treaty or conquest.19 Once that occurred, the Indians nonetheless retained internal sovereignty and ownership of lands not ceded to or taken by the European nation or, subsequently, the United States.20 In the unanimous decision in Mitchel v. United States in 1835, Justice Baldwin reaffirmed the proprietary nature of the Indians' title: [T]heir hunting grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. . . .