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Chapter 3 - Indian Land and Property: Title and Use
- University Press of Colorado
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60 American Indian Law Deskbook, Third Edition Land occupancy and ownership issues have been a central concern of Indian law since the nation’s founding. Beginning with the first Trade and Intercourse Act in 1790,1 statutory restraints have limited the ability of tribes to alienate land. In Johnson v. McIntosh,2 Chief Justice Marshall established common law principles based on the discovery doctrine that paralleled the statutory restraints. Despite the relative clarity of federal law in this regard, varying historical circumstances and statutory or treaty considerations have been a fertile source of litigation for tribal land conveyances. Difficult questions have arisen from congressional and Executive Branch actions affecting reservation boundaries and, therefore, the scope of Indian country. Significant controversy has attended efforts to reconcile tribal land grants with the equal footing doctrine’s presumption that states hold title to the beds and banks of navigable rivers and lakes. An important component of land ownership is the ability of tribes and individual Indians to recover economic rent from their lands by leasing the mineral and surface estates, granting rights-ofway , and authorizing timber harvests. Economic use, however, has been inhibited by the problem of fractionated title, that is, undivided ownership of land by many individuals. Finally, a collateral issue to property interests is the handling and control of Indian remains, grave goods, and sacred and cultural objects. I. SOURCES OF TRIBAL LAND OCCUPANCY RIGHTS There are two sources of tribal land occupancy rights: an aboriginal right premised on exclusive use of a particular territory at the time of first European contact, and an entitlement arising subsequent to such contact under the governing sovereign’s laws. The first source of entitlement, often termed aboriginal or Indian title, derived largely from international law concepts Chapter 3 Indian Land and Property: Title and Use 60 1 Act of July 22, 1790, 1 Stat. 137 (partially codified at 25 U.S.C. § 177). 2 21 U.S. (8 Wheat.) 543 (1823). 61 Indian Land and Property: Title and Use prevailing before and after the American Revolution,3 while the second source derived from treaties, statutes, executive orders, and actions by prior sovereigns. The rights attaching to tribal title were unaffected by its source except, most importantly, as to the title’s status as property for taking purposes under the Fifth Amendment of the Constitution.4 A. Aboriginal Title-Based Occupancy Rights The concept of aboriginal title was first addressed in Johnson v. McIntosh ,5 an ejectment action. Prior to the Revolution, the plaintiff had acquired land from Indian chiefs. The defendants claimed possession based on later grants from the United States. Applying principles formulated under European law,6 the Court concluded that the chiefs lacked authority to make the earlier grants and, therefore, they were void. The Court reasoned that, upon this continent’s discovery by Europeans, the discovering sovereign acquired “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.”7 Until such termination, however, “the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.”8 In sum, “[t]he absolute ultimate title has been considered as acquired by discovery, subject only to the Indian title of occupancy, which title the discoverers possessed the exclusive right of acquiring.”9 Because the “absolute ultimate title” vests upon discovery, the discovering sovereign or a subsequent sovereign possesses fee title, which it 3 See Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 43–44 (1947) (“Our concepts of Indian title derive only in part from common law feudal concepts. In the main, they are to be traced to Spanish origins, and particularly to doctrines developed by Francisco de Vitoria, the real founder of modern international law”). Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335, 338–39 (1945) (“Even where a reservation is created for the maintenance of Indians, their right amounts to nothing more than a treaty right of occupancy. . . . Prior to the creation of any such area, formally acknowledged by the United States as subject to such right of Indian occupancy, a certain nation, tribe or band of Indians may have claimed the right because of immemorial occupancy to roam certain territory to the exclusion of any other Indians and in contradistinction to the custom of early nomads to wander at will in the search for food...