The case of Johnson v. M'Intosh is exactly why Congress can pass legislation as it did with the Rio Tinto land mine deal because Congress took the land from the tribes, ignores their sacred connections to it, their cultural connections and does whatever it wants with it. Congress terminated tribal status for more than 100 tribes. Basically said, you're not a tribe anymore and we're not going to pay attention to the treaties. The Supreme Court has held that when Congress breaches a treaty with an Indian tribe it's not judicially reviewable. It's called a political question.

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.

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.

Western civilization has been at war with tribalism for 3,000 years. And that war was brought to the New World by the English colonists. A very early point in American law Chief Justice John Marshall is asked to decide the status of Indian tribes. And what he does. He calls them savages who lack the same rights as the white people who came over here, the Europeans, and colonized their land under this, what many Americans might regard as an obscure legal doctrine called the Doctrine of Discovery. But it is still the most important doctrine in American constitutional law.

Savagery was a word that Westerners used to, again, to consciously differentiate them from non-Westerners, to assert that superiority, that cultural superiority. It goes back to the British Empire, and again, you know, what was the purpose of the British Empire? To bring civilization to the savage no matter where they were, whether it was India or Asia or Australia or whatever. It's that civilizing mission that characterizes so much of the history of Western colonialism.

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.

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?