By Eminent Domain or Some Other Name: A Tribal Perspective on Taking Land

Abstract

The practice of eminent domain in the United States hasn’t changed much, only the people groups affected. Mainstream Americans are now realizing what American Indians have known for generations. For centuries, American Indians have seen their lands taken by federal and state governments without consent, and at times, without compensation. Eminent domain laws allow governments to seize land from private individuals and then redistribute the land to other individuals, private or public, who will make better use of the land. Current rhetoric claims governments taking private property from one person so it can be redistributed to another is "un-American." However, this practice is nothing new. In Johnson v. M’Intosh, 21 U.S. 543 (1823), Justice Marshall claimed, "To leave [the tribes] in possession of their country, was to leave the country a wilderness."

While American Indians have watched governments use similar rationales to take their land for centuries, this has only been a recent experience for mainstream Americans. In Kelo v. City of New London, 545 U.S. 469 (2005), the Court upheld that taking of private property that was neither crime-ridden nor run-down. The American public displayed outrage after the Kelo decision. Identifying with the homeowners, the public believed the Court’s ruling meant the government could now seize anyone's home. Instead of diverging from precedent, as some have alleged, Kelo affirms a long history that American Indians know all too well. Mainstream Americans are starting to become more familiar with what American Indians have experienced for centuries, and the Kelo decision has brought both Indians and non-Indians closer together in understanding that fee simple title is not absolute.

Keywords: American Indian, Eminent Domain, Kelo v. City of New London, 545 U.S. 469 (2005), Johnson v. M’Intosh, 21 U.S. 543 (1823), urban renewal, Tribes, private property, land, blighted, urban renewal, public use