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Student Work
Race, Racism and the Law
Spring, 2012


  • Treaty of Fort Laramie (1868) 


  • Johnson v. McIntosh, 21 U.S. 543 (1823)

Law Review Articles

  • Indian Giver: The Illusion of Effective Legal Redress for Native American Land Claims, 23 Southwestern University Law Review 331 (1994)


  • Black Hills, White Justice: The Sioux Nation versus the United States. 1775 To The Present., By Eddward Lazarus. (1991)


Treaties, Statutes and Regulation

General Allotment Act of 1887, 25 U.S.C.A

oAlso known as the Dawes Act, this legislation was proposed by Senator Henry L. Dawes, and was adopted by Congress in 1887, and received authorization of the President resulting in allotting Indian tribal lands to individuals. This Act had a very negative effect on the Native Americans, as it took away communal ownership, and led for the ability of the individual Indians to sell their land, of course to white buyers. The government aimed to help with assimilation of Indians; however the Act resulted in a loss of about 90 million acres of land for the Native Americans, and left 90,000 Native Americans landless. This Act existed for 47 years, until President Roosevelt passed the New Deal and instituted the Indian Reorganization Act, which renewed several Native Americans rights.

Title VI of Civil Rights Act of 1964, 42 U.S.C.A. § 2000d (West)

oThe Civil Rights Act of 1964 was a landmark, as it prohibited discrimination against African Americans and Women, and addressed and ended racial segregation. The purpose of this Act was to restore racial equality, and give more rights and protections to the African Americans. The passage of the Act was a long legislative process the required gaining more and more support over the years. The highlights of the Act were: outlawing discrimination based o race or color in such places as hotels, restaurants, theaters, and any other public accommodation, prohibited local governments from denying access based on those same grounds. It desegregated schools, prevented funding discrimination. The Act was signed by President Johnson and has been in effect ever since. The Act was paramount for racial equality in this country.\


Treaty of Fort Laramie (1868)

oAlso known as the Siox Treaty, this was an agreement between the United States, and the tribes that made up the Sioux Nation. It was executed in 1868, at Fort Laramie, in the Wyoming Territory. This agreement gauranteed the Sioux Nation ownership of the Black Hills. Trouble with the lands began, when gold prospectors began to mine the area. The United States government then seized control of the Black Hills in 1877. This is the agreement and dispute that led to the United States v. Sioux Nation, in which the Sioux received monetary damages, but no their land back. The Sioux Nation to this day, under the terms of this treaty, demand return of their land of the Black Hills from the United States.


Alexander v. Sandoval, 532 U.S. 275 (2001)

oThis was a 2001 United States Supreme Court decision that held that private rights of action were not allowed under Title VI of the Civil Rights Act of 1964. The case involved a plaintiff, who was an Alabama woman, who sued the Alabama Department of Public Safety, claiming it was discriminatory to hold the Alabama Drivers License test in English only. The District Court agreed, and held the plaintiff did have a private right of action, as it was implied from the Civil Rights Act. The Majority Opinion of the Supreme Court, authored by Justice Scalia, found differently. The majority found there was no implied right of action, and refuted the case law put forth by the plaintiff, and that the act only prohibits intentional discrimination.

Johnson v. McIntosh, 21 U.S. 543 (1823)

oWas a landmark United States Supreme Court case, that held that private citizens could not purchase lands from Native Americans. This case also established the doctrine of Aboriginal Title in the United States, and how it ties in the Discovery Doctrine. This further held aboriginal title was inalienable. This required all Native American conveyances to be to the federal government, in order to be valid. In dicta, the Court opined that the discovery doctrine, granted the United States the right to occupancy of the lands it discovers. This had an enormous historical effect on the land rights of the Native Americans.


United States v. Sioux Nation, 448 U.S. 371 (1980)

oThis was a 1980 Supreme Court decision that the Sioux Nation of Indians had property wrongfully taken, and they required compensation, and that the Sioux Nation bringing a claim against the United States did not violate the separation of powers. The Fort Laramie Treaty of April 29, 1868 granted the Great Sioux Reservation and the area of Black Hills, SD, would be for the absolute use of the Indians. However, as White settlers began to advance westward, and the discovery of gold in the Black Hills area attracted miners, the government began to take the land back from the Sioux. The Sioux received over 100 million dollars in damages, affirmed by the Supreme Court, which was the value of the land in 1877, and the amount of gold extracted plus interest. The Sioux has refused the award, as that means they will never have a chance to get the property back.

Law Review Articles

Indian Giver: The Illusion of Effective Legal Redress for Native American Land Claims, 23 Southwestern University Law Review 331 (1994)

oSusan Lope, A professor of law at Southwestern University School of Law, Discusses the Native Americans struggle to maintain their rights to and for title, and the American Government taking it away or not granting without justification. This author further discusses the loss of sovereignty of the Native Americans, and how the case of Johnson v. McIntosh, and the Doctrine of Discovery, took their land and their sovereignty. The Americans soon came to treat the Native Americans as “Domestic Dependent Nations”, with their rights to land being taken away and their view as nations of sovereignty gone. The author further discusses this plight by the reliance Native Americans placed on treaty’s and how the Americans, subsequently turned their back on these treaty’s and did not enforce them, in an effort to continually acquire their land. The author then ties this all together as the foundation for the rights of the Sioux Nation in the Black Hills, SD region. This is analyzed thru the Governments treatment of the Sioux, thru trespassing, the discovery of gold, and the taking of land in this area. The author further discusses the long involved legal plight of the Sioux to find redress, and reparations for their land that was taken. The author concludes with refuting the laws disparaging Native American treatment, and how the Native Americans should be returned to and treated as sovereign nations, and how they can fit into the American system. The author suggests elevating the Native Americans political status to implement stability.

Indian Claims in the Courts of the Conqueror (Fnaa), 41 American. University Law Review 753 (1992)

oProfessor Nell Jessup Newton, of American University School of Law, aims to analyze the Indian Tribal claims against the Government. The author’s discussion focuses on the American Court system, and the need for specialized courts, and how the Indian Claims have ended up in the Federal Circuit after the creation of it and its combination with the Federal Patent and Customs Court. Indian Claims often involve property claims and millions of dollars, even though they make up a small portion of the docket, and the court was not formed with them in mind. The author discusses several cases through history that expose the pitfalls of the claims system. These examples include the Dann Sisters, who were part of the Western Shoshone, and how they were ordered to stop grazing their land, and eventually lost it by judicial decree. Next, the Sioux Nation and their property interest of the Black Hills, SD region has been the topic of much dispute involving a never-ending plight that eventually ended in money damages award for the Sioux. The government claimed these lands by breaking a treaty in 1887. Another example includes the Cherokee and land around the Arkansas River that contains very valuable oil and gas deposits, and how this land was taken from them. The country enacted the Federal Courts Improvement Act, and improved on the previous three inadequate ways to bring and Indian Claim. The author further analyzes the jurisdictional and procedural pitfalls of the Indian Claims, and the advancement towards a better system for advocating these claims.



oThis journal article, by John LaVelle, who is an enrolled member of the Sioux Nation, and a law professor and director of the Indian Law program at the University of New Mexico School of Law. Mr. LaVelle is a legal expert and well authored professor on Federal Indian Law. This publication addresses the need to return the Black Hills, SD region back to the Sioux Nation. The monetary award, which is held in trust and now valued at over 500 million dollars, is not thought to be the right remedy by the Sioux. The Sioux nation want their land back, and Professor LaVelle, authors this article discussing the complex history of the dispute and the legal foundations for restoring title of the Black Hills to the Sioux.

Black Hills, White Justice: The Sioux Nation versus the United States. 1775 To The Present., By Eddward Lazarus. (1991)

oThis is book written by Yale Law School graduate Edward Lazarus. He is a former clerk for Justice Blackmun in the United States Supreme Court, and is currently the Chief of Staff of the Federal Communications Commission. Edwards father, Arthur Lazarus, was the lead attorney for the Sioux Nation in the landmark United States v. Sioux Nation Supreme Court case. In this book, Lazarus explores the details of the events leading up to the case, including broken treatises, and how this became the longest running dispute in U.S. history, lasting 57 years. This book provides an essential insight into the case, with someone with first-hand knowledge of the Sioux’s legal tactics.