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The USA considers itself a decent, civilized country. In the international arena it claims to be a "force for good", always aiming for peace and democracy and respect for human rights.

The elephant in the room is that the USA actually has a turbulent and bloody past. The Native American Tribes that inhabited and owned the territory that would become the USA were nearly exterminated by constant warfare and disease. The US government then confiscated (stole) their lands and gave it to white settlers. In hindsight these actions were horrendous and illegal, based on greed and racism and perverse concepts of progress.

I find it puzzling that the USA is unwilling to accept accountability for its past actions. If we can agree that the confiscation of Native American lands was illegal, why is there no legal movement to return these lands to the tribes? It should not be too hard. There are vast regions in Montana, Wyoming and Idaho that have a very low population density. One could take these lands from the ranchers and the states and return them to the tribes as compensation.

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    I’m voting to close this question because it belongs on politics.stackexchange.com Mar 14 at 19:48
  • It does seem to me that issues about defrauding people and confiscation of property without compensation are legal issues. Mar 14 at 20:36
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    There are vast regions in Montana, Wyoming and Idaho that have a very low population density. One could take these lands from the ranchers and the states and return them to the tribes as compensation. We did this already, effectively. What do you think Indian Reservations are? Also, despite the image of "plains Indians", there were tribes all over the United States - in Washington, many of them live scattered around the Puget Sound area, and returning their lands would require returning large chunks of Seattle.... Mar 14 at 21:32

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Conquest is a valid legal basis for acquiring sovereign title to land. Also, much of the land was acquired by treaty.

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  • Treaties were routinely broken. Mar 18 at 5:30
  • @GeorgeWhite They were and in U.S. law it is permissible to Congress to breach a treaty unilaterally with ordinary legislation. But a breach of a treaty doesn't invalidate the transfer of sovereign title.
    – ohwilleke
    Mar 18 at 16:07
  • Not a breach of contract ? Mar 18 at 23:53
  • @GeorgeWhite Treaties aren't contracts. They are more akin to laws.
    – ohwilleke
    Mar 19 at 1:15
  • Worth mentioning that while treaties can be breached, Indians retain a Fifth Amendment right to compensation. Mar 22 at 4:56
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If we can agree that the confiscation of Native American lands was illegal ...

European settlement was done without much consideration of legalities vis-a-vis native populations; it largely consisted of European powers dividing the rest of the world between themselves.

To the extent that it was considered, it depended on how "civilized" the natives were. If they were "wild", then the land was considered terra nullius (lit. no one's land), and it belonged to the first person/nation to occupy it; this is how Australia was colonised. Where there was something that the Europeans could recognise as a centralised power among the indigenous, they would negotiate treaties; this was how New Zealand was colonised. However, later legal interpretations would not treat them as treaties under international law but rather as contracts and, therefore, subordinate to domestic law; this is why the Treaty of Waitangi is not legally enforcable.

It is at least arguable that the seizure of at least some native lands wasn't illegal; however, that just begs the question. Let's assume that your premise is correct and that (at least some) native lands were illegally seized.

There is probably no legal remedy

The first issue is why you only talk about "regions in Montana, Wyoming and Idaho that have a very low population density"; your position is equally applicable to downtown Los Angeles and Chicago. Or, for that matter, to York, London, Paris, or Tel Aviv - the land in all those places was seized from the original inhabitants.

However, the USA acquired Montana and Wyoming from France, not the native Americans. So, should they first be returned to the French, and repatriation to the natives be dealt with under French law? If not, why not?

Also, most of the south-west was illegally acquired in a war of conquest from Mexico. So California, Arizona, Texas, Nevada, etc., should be returned to Mexico; who can return it to the native Americans if their law allows?

It probably comes as a surprise, but the law is generally very pragmatic. It has to deal with the world as it is, not the world as it should have been.

The natives have been illegally disposed of their land. However, the actual people who did the dispossessing and the people who were disposed of are all long dead. It is impossible to return the land without injuring innocent third parties - those ranchers you speak of, for example.

A court might devise an imaginative solution - it's been done in other jurisdictions. However, it doesn't seem likely, given the different histories and existing legal precedent. So, the wrong cannot be undone by legal means.

But that just begs another question: why can't the US (or its states) just do what you suggest? That is, pass laws that "take these lands from the ranchers and the states and return them to the tribes as compensation."

Well, they can. Compensation will have to be paid to the people whose land is taken but such a law is possible. All it takes is the political will to do so.

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