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QUESTION: How does the Indian reservation have an effect on the right of occupancy

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Neither the Secretary of the Interior, Congress, or any other branch of government, has the Constitutional power to disregard the Right of Occupancy and this fact is settled government policy. Congress has recognized Original Indian Title in several state enabling acts (or acts of Congress officially creating/recognizing a state) by requiring the incoming state to disclaim all right and title to lands owned or held by any Indian or Indian tribe. From our class discussion on Discovery, what the Treaty of Guadalupe Hidalgo transferred to the United States was the right to purchase/conquer the lands of that territory from tribes (the Federal Government cannot grant what it does not have). Where no land cession has been freely made by a tribe, Original Indian Title remains unaffected. So, the second right of Original Indian Title is to transfer that title to the sovereign possessing the right of Discovery. When the United States would attempt to purchase land of Native Americans, “Indian reservations” were created by removing those lands from the purchase so the tribe would continue to hold Original Indian Title within those boundaries.
Original Indian Title contains two very basic rights, the right to occupy the lands involved and the right to sell those lands to the government who possesses the right of Discovery. Though the United States had the right to conquer Native American lands to claim possession, the fact is that the common approach was to avoid military conflict and to purchase those lands instead.

The Indian reservation has an effect on the right of occupancy by U.S. citizens, American Indians, and Alaska Natives are generally subject to federal, state, and local laws. On federal Indian reservations, however, only federal and tribal laws apply to members of the tribe, unless Congress provides otherwise.

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