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Ariz. L. Rev.


This article develops a modern Indians taking doctrine by critically examining the unfolding of Marshall's Indian bargaining model through three distinct eras: 1) Chief Justice Marshall's construction of the Indian bargaining model as an American adaptation of the European doctrine of discovery; 2) the Supreme Court's subsequent reformulation of that model as the Indian plenary power doctrine; and 3) the Court's failed reconciliation of the Indian plenary power doctrine with the just compensation command of the Constitution.

A sketch of such a doctrine is provided by a case study of the 1949 taking of the Fort Berthold Indian Reservation, a struggle that encapsulates the legal and practical disadvantages that confront Indian peoples who bargain with Indian congressional committees over the terms governing the taking of their lands. From the case study are extracted economic and doctrinal principles that form the backbone of modern Indian takings doctrine.