One was a horrible case called Oliphant v. Suquamish Indian Tribe which denied tribes the right to criminally prosecute non-Indians who commit crimes on their reservations. That decision has had horrible consequences for law enforcement on Indian reservations. But in that opinion Justice William Rehnquist cites language from the 1830s to explain why whites didn't trust tribes to exercise criminal jurisdiction. They were savages.

Today what we see is tribes moving into the 21st century and facing real 21st century problems of globalization, of multi-national, national resource development, of jobs, tribes have elected leaderships. They're elected to do a lot of things.

One was a horrible case called Oliphant v. Suquamish Indian Tribe which denied tribes the right to criminally prosecute non-Indians who commit crimes on their reservations. That decision has had horrible consequences for law enforcement on Indian reservations. But in that opinion Justice William Rehnquist cites language from the 1830s to explain why whites didn't trust tribes to exercise criminal jurisdiction. They were savages.

Until we start attacking the root of the historical problems of discrimination against Indians, and those Indians begin in these stereotypes, that Indians are less civilized than us, they're less able to exercise self-governing functions. Until we get to the roots of those problems, we're not going to change legislation. We're not going to change the hearts and minds of the Supreme Court.

What John Marshall says is that right of occupancy can be taken away by purchase, conquest or any other means. So the reason that this case Johnson v. M'Intosh is so important is it really sets the foundation for this radical approach to understanding the basic human rights of Indian people to hold and control the lands that they occupy. It gives the US government the right to relocate, it stands at the bottom of the ethnic cleansing campaigns, for example, in the removal era.

Many of the situations that we've talked about whether it's the San Carlos, whether it's the Navajo fighting for their land rights or fighting to develop their land to try and provide decent jobs on the reservation. The backdrop to all that, the reason that we have those battles is that history of dispossession. The story isn't over for American-Indians. ... You know, how could any tribal member think about giving away something that means so much to the tribe?

African-Americans were dispossessed of the land by being brought over here in slave ships, whereas Indians were on the land and fought literally wars against Europeans for control of that land. And that history of dispossession, you know, if you look at the treaties, it's very interesting. Everyone thinks that Indians were ripped off in their treaties. If you look at the first round of treaties from about 1800 to the Civil War, tribes secured over 150 million acres. I think it may have been 144 million acres in those treaties. That's a large amount of real estate.