Congress passed the 1887 General Allotment Act. And that act ended up dispossessing tribes of 90 million acres. That history of dispossession was also accompanied by a history of forced assimilation whether it was in residential schools, whether it was in dismantling traditional tribal governance structures. And the justifications for that is that you're not as good as us. Our systems are better. Our modes of education. Our ways of owning land, our ways of working have been continually cited to Indians as the reason for these government policies.

US law and international human rights law have radically diverged in the past years in terms of the recognition of indigenous people's rights. International human rights law now looks at not whether or not the tribes have formal ownership or legal title in a Western legal conception might have it, but rather they look at the tribe's historical connection to that land.

In fact, Native American Rights Fund has a project called the Supreme Court Project. And quite frankly, it's focused on trying to keep cases out of the Supreme Court. This Supreme Court, Justice Roberts is actually, hard to believe, was probably worse than the Rehnquist Court. If you look at the few decisions that it's issued.

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.

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.

What this ideology, what this myth about savagery did was really excuse America for the disappearance of the Indian. It wasn't our fault. They were just an inferior race. And so John Marshall adopts that. And the tragedy and the present-day circumstances of that decision are that those racial attitudes are so deeply embedded in these foundational principles of American Indian law.

Very much like African-Americans, the history of America is taking away resources, whether it's labor or whether it's land from one racial group to give them to the dominate racial group. So in that sense, there is a very similar experience with Indians.