-54

had been permitted to enter upon the tribe's lands in 1859 before the tribe's aboriginal title had been extinguished. While there was no legislation specifically extinguishing the tribe's aboriginal title, the court determined that a series of acts and events, including the passage of legislation in 1865 and 1866 validating titles to mining claims on the land in question, had the effect of extinguishing the tribe's aboriginal title effective as of the dates in 1859 when the original tortious entries had been made on the land by the miners:

The retroactive validation of the miners' entries made the situation the same as if the United States had issued a patent to each miner before he started to dig. It is clear from this passage that for purposes of the instant claims, the miners' acts cannot now be regarded as torts of third parties. By subsequent ratification and adoption they are made acts of the United States. The significance of the Shoshone case, cited by us, is that it holds that when the United States adopts and ratifies a wrong against an Indian tribe, even though it was unauthorized and tortious originally, the ratification makes it an act of the United States, and the date of the wrong becomes the date of the taking. 1/

17 490 F.2d at 958. Since the claim of the tribe was filed under provisions of the Indian Claims Commission Act that expressly created a cause of action against the United States for the uncompensated extinguishment of aboriginal title prior to 1946, the court determined that the tribe was entitled to compensation based on the value of the lands at the time of the extinguishment. At present there is no statutory provision that allows a cause of action against the United States for extinguishments of aboriginal title.

Since the extinguishment was effective as of

the dates of the original entries on the land by the miners, the court held that the miners' actions could not constitute trespasses against the aboriginal title of the tribe.

In summary, the foregoing line of cases leave

no doubt that Congress has the power to enact legislation extinguishing any aboriginal title that may be held by the tribes that have raised Nonintercourse Act claims and to make such extinguishment effective as of the dates of the original transfers of the land by the tribes involved.

C.

Legislation that would clear present titles
by extinguishing aboriginal title claims would
not give rise to a right to compensation under
the Fifth Amendment.

1/

In considering legislation that would clear present titles by extinguishing the aboriginal title of the tribes that have raised Nonintercourse Act claims, Congress can be assured that it was complete power and discretion to determine the measure of compensation, if any, that ought to be provided to these tribes. The decisions of the courts are clear that

-

legislation extinguishing aboriginal title even when the

17 For purposes of the following discussion, it is irrelevant whether the extinguishment is achieved by language in the legislation specifically extinguishing the aboriginal title or by language that would approve prior transfers of aboriginal title. As noted above, it is desirable for Congress to utilize both approaches so as to avoid any possible ambiguity as to the intended effect of the legislation.

-56

affected tribe is using and occupying the lands involved at

L.C

the time of the legislation, much less where the tribes have not been in possession of the land for close to two centuries does not give rise to any claim that such legislation constitutes a taking of property that is compensable under the Fifth Amendment.

and it

The definitive statement that aboriginal title is

not a property right protected by the Fifth Amendment is contained in Tee-Hit-Ton Indians v. United States, -348 U.S. 272 (1955). In that case, the Tee-Hit-Ton Indians claimed that they had a constitutional right to recover under the Fifth Amendment for a taking of timber from lands occupied by them in Alaska that were part of the Tongass National Forest. The timber had been sold by the Secretary of Agriculture pursuant to a 1947 Joint Resolution of the Congress that authorized the sale of such timber by the Secretary. After determining that the Tee-Hit-Tons held aboriginal title

1/

rather than recognized title to the lands in question, the court addressed the nature of aboriginal title and

whether such title involved property rights protected by the

Constitution:

The nature of aboriginal Indian interest in land and the various rights as between the Indians and the United States dependent on such

-

17 For a discussion of this aspect of the decision, see pages 33-34, above.

-57

interest are far from novel as concerns our
Indian inhabitants. It is well settled that in
all the States of the Union the tribes who in-
habited the lands of the States held claim to
such lands after the coming of the white man,
under what is sometimes termed original Indian
title or permission from the whites to occupy.
That description means mere possession not
specifically recognized as ownership by Congress.
After conquest they were permitted to occupy
portions of territory over which they had
previously exercised "sovereignty," as we use
that term. This is not a property right but
amounts to a right of occupancy which the
sovereign grants and protects against intrusion
by third parties but which right of occupancy
may be terminated and such lands fully

disposed of by the sovereign itself without
any legally enforceable obligation to compensate
the Indians.1

No case in this Court has ever held that
taking of Indian title or use by Congress re-
quired compensation. The American people have
compassion for the descendants of those Indians
who were deprived of their homes and hunting
grounds by the drive of civilization. They
seek to have the Indians share the benefits of
our society as citizens of this Nation.
Generous provision has been willingly made to
allow tribes to recover for wrongs, as a matter
of grace, not because of legal liability. 2/

[T]he rule derived from Johnson v. M'Intosh
[remains unimpaired] that the taking by the
United States of unrecognized Indian title is
not compensable under the Fifth Amendment.

This is true, not because an Indian or Indian tribe has no standing to sue or because the

-58

affected

m and bewing the Jande
United States has not consented to be sued for
the taking of original Indian title, but be-
case Indian occupation of land without govern-
ment recognition of ownership creates no rights
against taking or extinction by the United States
protected by the Fifth Amendment or any other
principle of law.

Our conclusion does not uphold harshness as
against tenderness toward the Indians, but it
leaves with Congress, where it belongs, the
policy of Indian occupancy of Government-owned
land rather than making compensation for its
value a rigid constitutional principle. 2/

The decision in Tee-Hit-Ton is the culmination of

a line of judicial precedent stretching back to 1823 making

clear that aboriginal title does not involve a constitutionally 3/ compensable interest in land, and has been followed in

recent decisions involving the 1971 Alaska Native Claims Settlement Act. See United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1030 (D.Alaska 1977) ("Tee-Hit-Ton makes clear that Indian occupancy of land without government recognition of ownership is not a constitutionally protected interest and therefore may be terminated by Congress at will without compensation"); Edwardsen v. Morton, 369 F. Supp. 1359,

3/ See United States v. Alcea Band of Tillamooks (Alcea II), 341 U.S. 48 (1951); Northwestern Band of Shoshone Indians v. United States, 324 U.S. 335 (1945); United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941); Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1923)..