Matthew H. Birkhold
When the English arrived in the “New World” in the seventeenth century, they viewed the land as empty, unused, and unclaimed—a “vacuum domicilium” that legally justified their usurpation of the land. Nearly four hundred years later, we have come to appreciate that Native Americans stood in various agricultural, economic, spiritual, and geopolitical relationships with the land. The English simply failed to perceive these connections and uses. The Supreme Court’s recent decision to hear Nebraska v. Parker offers an opportunity for the American justice system to demonstrate that it has since developed a more enlightened and nuanced jurisprudence, one that understands more about Native Americans than the early colonists did.