Introduction The Plan of the Book This chapter provides a guide to the structure and purpose of this book and a hint about its destination. Stories of dispossession and domination of Indigenous peoples are often told (and often elided) when talking about American history. A crucial part of this genocidal history—one that is rarely discussed—is the story of the legal doctrines underpinning this dispossession and domination. This book tells that story and examines doctrines that haunt U.S. law to this day in what is known as “federal Indian law.” The first thing to understand is, as Professor Elizabeth Reese succinctly put it, “Federal Indian law is not really Indian law.” She quoted Vine Deloria, Jr.’s famous remark, “What is missing in federal Indian law are the Indians.” She added, “Indians and their tribes are the objects of federal Indian law, not its architects,” and “federal Indian law’s domination” consists of “laws the United States has come up with to legitimize or shape Indians’ conquest.”1 As I said already, this is federal anti-Indian law. However, as we will see when we examine Johnson v. McIntosh (1823), the foundation case in the field, federal anti-Indian law does not actually legiti- mize conquest, but a pretense of conquest. Chief Justice John Marshall expressly stated that in his adoption of the fifteenth-century doctrine of “Christian discovery.” He described the doctrine as the “extravagant . . . pre- tension of converting the discovery of an inhabited country into conquest.”2 We will see why this distinction between “discovery” and “conquest” is juris- prudentially significant. Chief Justice Marshall constructed federal anti-Indian law domination in three early nineteenth-century cases. First came Johnson v. McIntosh (1823), a property law decision declaring that Native peoples did not own their lands after they had been “discovered” by Christian colonists the second was
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