The difference between the relation of Kansas with Luxemberg and the relation of Kansas with an Indian tribe within its borders is that the United States has never conquered Luxemberg. Back in the 1820s Chief Justice Marshal ruled, in Johnson v. M'Intosh, 21 US 543, 587-89 (1823) that the United States had the complete power, by right of conquest, to extinguish Native American sovereignty. That power was also exclusive; the states could not regulate Native Americans except insofar as authorized by the US to do so:

The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.

The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. The validity of the titles given by either has never been questioned in our Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with, and control it. An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognise the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.

We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. . . . These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Consistent with that general principle and other Supreme Court precedents, Bryan held that the states could not tax Native American property without the consent of Congress, and that P.L. 280 had not given that consent. Congress could give that consent. It could end tribal sovereignty tomorrow if it chose. Bryan refers to several "termination acts" in which Congress did just that. It could also prohibit gaming on Native American land, or even place that land under state jurisdiction for civil and tax purposes. To the extent it has declined to do so, that is a matter of forbearance, based on the conquerors' sense of what is just.

Nice post ... you'll never hear of a kid reading this in a public school.

Perhaps in Texas.

When I taught law school, I used Johnson as one of the cases on the fundamental question of the nature of property.

Was it Locke who argued ownership depends on effort or labor or creation somehow? The farmer owns the field of corn because he worked it into being ... using raw materials nature provided equally to all. Then things get complicated figuring out how nature's bounty gets apportioned, in the absence of human laws, once it becomes scarce. First come? Whoever can take it? Whoever can hold it?

I've been trying to learn about how the Age of Discovery folks justified their conquests of the Americas ... it's sort of a trick to find that reading. I know from a Discovery or Nat Geo show, or maybe something I read in passing, that the church had to be won over to allow conquistadors their work. The church agreed, if I got it right, based on idea that the earth is God's, and anyone should be able to walk it unmolested. So, civilize them! (and take some gold and spices for your trouble ... something like that :-)

Yes, that's Locke's labor theory of value, later taken up by Marx. But there is a difference between a moral right to ownership and a legal right. In the legal sense, property is possession and control that the state will protect against interference by third persons, and Locke pointed out that one of the primary purposes for which government was established was to secure that possession. As Fisher Ames, a Federalist Congressman, put it in the 1790s, "Liberty in the state of nature is the liberty to be knocked over the head for a handfull of nature."

There's an extensive Spanish academic literature from the 16th century on the right of conquest, with which I'm not familiar, but I know it grew out of the mideaval Spanish experience of conquering (or liberating from the Christian point of view) Muslim territory in Spain.

Fisher sounds like a rare Hobbsian (anti-natural law theorist) among the Founders ... there's a nifty bit of Scalia endorsing natural law morality as the basis for our legal system here:

<link>

I think Locke was a natural law guy, preferred by Jefferson and Hamilton. I could be wrong.

The Scalia bit is hilarious ... he must just hate modern college kids.

Forgot the say thank you for the clue on tracking the literature on conquest. Thanks!

Cheers!

The spanisch Conquistadores were require by the Crown, to first approach a Native group, send one man forward to read them the "requirimento'- which asked them to accept the Spanish sovereign as their lord. Even Columbus on his first voyage had to take along a royal notary to record and certify the events. The Spaniards were highly bureaucratic and kept some quite formal attidutes: When the "caziques" of the Tlatzcalecos offered their daughters as wives - the Spaniards asked them explicitly to wait until a formal ceremony could be arranged. (Cortez and the leadership had to consider that the Church was watching and that rivals would report any lapse of decorum to the Court back in Spain.) Cortez - of course - had also studied "law" at Salmanca for a couple years - but did not continue to receive a degree: The sword was more profitable then the pen. He left a bequest in his testament for each of his known children. (Most by Indian mothers.)

It's fascinating stuff. Thanks!

What's to keep the occupants of a reservation from applying for full statehood?

Applying is one thing, getting is another. Congress determines whether new states are admitted. Its power is limited by the clause of the Constitution which provides that no new state can be created from part of another state without that state's consent. (Hence NY and NH consented to the creation of VT, MA consented to the creation of ME, and VA (or rather a sham Union-loyal government of VA "consented" to the creation of WV). All Indian reservations are physically within existing states.

so in other words, how much money would it take to ply the will of local and federal governments?

Correction of my wrong spelling: The word is "requerimiento" (requirement) which during Cortez's era - 16th century - was to be "advised" to confronting Indian groups: The exhortation to accept the Christian doctrine and the requirement to accept the Pope and the King (Emperor during a period) of Spain as their lords. Generally this was translated. In 1517 Spaniards landed on Cozumel Island, captured two Mayas who then were trained in Cuba as interpreters. On return to Yucatan in 1519 the interpreters informed about two Spaniards living with Mayas (the two had been shipwrecked sailing 1511 from Panama to Cuba). One of the Spaniards, Francisco Aguilar became Cortez's interpreter. Later in Veracruz the famous "Malinche" completed the "tongues" - an Indian ex-princess who spoke both Maya and Aztec. Cortez spoke Spanisch to Aguilar who spoke Maya to Malinche who later spoke Aztec to Montezuma...