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3: Indian Land and Property: Title and Use
- University Press of Colorado
- Chapter
- Additional Information
79 Indian Land and Property: Title and Use 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, statutory restraints have limited the ability of tribes to alienate land. In Johnson v. McIntosh 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 geographic boundaries of tribal jurisdiction. Significant controversy has attended efforts to reconcile tribal land grants with the equal footing doctrine’s presumption that states hold title to the beds of navigable rivers and lakes. An important component of landownership is the ability of tribes and individual Indians to recover economic rent from their lands by leasing the mineral and surface estates, granting rights-of-way, and authorizing timber harvests. Economic use, however, has been inhibited by fractionated title, that is, undivided ownership of a parcel by many individuals. Finally, issues collateral to property interests are the handling and control of Indian remains, grave goods, sacred and cultural objects and the preservation of areas of spiritual significance. 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 Act of July 22, 1790, 1 Stat. 137 (partially codified at 25 U.S.C. § 177). 21 U.S. (8 Wheat.) 543 (1823). Chapter 3 Indian Land and Property: Title and Use 79 80 American Indian Law Deskbook, Fourth Edition concepts prevailing before and after the American Revolution. A tribe establishes aboriginal title by “immemorial occupancy . . . to the exclusion of other Indians.” The second source of land occupancy rights 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. A. Aboriginal Title-Based Occupancy Rights The concept of aboriginal title was first addressed in Johnson v. McIntosh, 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, the Court concluded that the chiefs lacked authority to make the earlier grants and, therefore, they were void. The Court reasoned that, upon the 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.” 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.”10 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.”11 Because the “absolute ultimate title” vests upon discovery, the discovering sovereign or a subsequent sovereign possesses fee title, which it may convey 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 inter national law”). Nw. Bands of Shoshone Indians v. United States, 324 U.S. 335, 338–39 (1945); see also New York v. Shinnecock Indian Nation, 523 F. Supp. 2d 185, 251 (E.D.N.Y. 2007); Greene v. Rhode Island, 398 F.3d 45, 50 (1st Cir. 2005); Cayuga Indian Nation v. Cuomo, 758 F. Supp. 107, 110 (N.D.N.Y. 1991). See Canadian St. Regis Band of Mohawk Indians ex rel. Francis v. New York, 278 F. Supp. 2d 313, 343 (N.D.N...