Title: Native Americans and the Law : Native Americans Under Current United States Law
Headings: 
Native Americans and the Law: Native Americans Under Current United States Law
Suggestions for Further Reading

Content: Introduced in the 1823 case of Johnson v. M'Intosh, 2 1 U.S. (8 Wheat.) 543, the discovery doctrine provided that at the discovery of the New World by Europeans, title to all discovered lands vested in the discovering European sovereign, while the tribes retained an occupancy right alienable only to the same discovering sovereign. Discovery had deprived the tribes of the power to alienate their lands freely. In 1978, in Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, the Supreme Court held that discovery also deprived the tribes of the power to conduct criminal prosecutions of non-Indians. In 1990, in Duro v. Reina, 495 U.S. 676, the Oliphant holding was expanded to proscribe tribal criminal prosecutions of non-member Indians. The Duro decision prompted a federal legislative override; the constitutionality of this override has been questioned, and its effect remains uncertain. Other discovery-related limitations on tribal power involve the exercise of civil jurisdiction. In Montana v. United States, 450 U.S. 544 (198 l), the Supreme Court held that tribes could not exercise civil regulatory jurisdiction over non-Indian activities on non-Indian-owned lands within the bounds of reservations, unless the non-Indian had some commercial relationship with the tribe or the activity threatened or had some direct upon the tribe's political integrity, economic security, or health or welfare. In Strate v. A-l Contractors, 520 U.S. 438 (1997), the Court expanded this rule to deny a tribal court the right to hear a civil dispute brought by a non-Indian against another non-Indian for a tort arising on a state right-of way within the reservation.