Constitutional realism and third party property rights in Tsilhqot'in Nation v. British Columbia and Oneida Indian Nation v. New York

Kent McNeil's COMMON LAW A BORIGINAL TITLE has contributed significantly to the judicial recognition of native title in Australia and aboriginal title in Canada. Although McNeil' s monograph also indicates how to reform the doctrine of original Indian title in the United States, American courts have yet to examine how common law aboriginal title would alter federal Indian law. This thesis pierces the barrier between American common law jurisprudence and the jurisprudence of other common law settler states, so that the archaic American doctrine of original Indian title may be updated with reference to the modern principles of McNeil's theory, Australian case law, and Canadian case law.;Additionally, this thesis presents a comparative case study of Tsilhqot'in v. British Columbia and Oneida v. New York. This study critically examines how settler society's moral imperative to protect private landholders' interests unduly influences Canadian and American courts to diminish aboriginal titleholders' bundle of rights.