David J. Bloch


In Aboriginal Rights and Judicial Wrongs: The Colonization of the Last Frontier, I examine a recent sea-change in federal Indian law that has escaped the notice of scholars. In the light of the divestiture of tribal sovereignty characterizing recent Supreme Court decisions, my article interrogates a contemporary case that rejects the property principle underlying all of federal Indian law itself in favor of a conception of aboriginal title never before countenanced in the United States and long discredited elsewhere. My analysis argues that this new conception traduces 175 years of American precedent and violates international law. I also contend that it vitiates the constitutional separation of powers, in which plenary power over the Indian nations is allocated to Congress, and amounts to a legislative decision by the courts to colonize the nation's last frontier, the ocean, through extinguishment of aboriginal interests therein. My article meticulously critiques the case at issue, Native Village of Eyak v. Trawler Diane Marie, Inc., and its interplay with common law aboriginal title, federal supremacy over the ocean, and the international law of sovereign succession. It draws novelly on English law in respect of the territorial sea and aboriginal title in current and former Commonwealth states, particularly Australia, Canada, and New Zealand but also Southern Nigeria and India. The article also situates the matter in the context of indigenous peoples' rights under international law and deploys the political philosophy of James Tully and Will Kymlicka to evoke the broader discourse of group rights and Rawlsian liberalism. Finally, I conclude it with recommendations: that Eyak be overturned as a doctrinally incorrect and politically indefensible intrusion into congressional prerogative and tribal autonomy; that its contemptible vision of aboriginal title be rejected as having no place in a postcolonial world; and that Congress alternatively fulfill its fiduciary duty to the plaintiff Indians by granting a title commensurate to their claim or providing compensation for the judicial taking of their right of occupation.