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Post by denney on Aug 8, 2006 0:14:31 GMT -5
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Post by denney on Aug 8, 2006 0:15:55 GMT -5
1146 SECTION II – OWNERSHIP OF NATURAL RESOURCES CHAPTER 4 I-II INTRODUCTION TO SOVEREIGN AND INDIVIDUAL OWNERSHIP OF LAND AND RESOURCES The control of natural resources in this country is a dual function of ownership and governmental regulation. Because law gives owners control over their land, the owner's preference is a strong determinant factor in the condition of that land. Owners diverge in their land use preferences. We assume that a forested parcel owned by the Nature Conservancy (a non-profit land trust) for the purpose of providing wildlife habitat has a better chance of evolving naturally than a forest owned by a timber company for the purpose of producing revenue to stockholders. Ownership is therefore an important part of natural resources law, because it determines landscape conditions within the broad spectrum of parameters set by regulation. Traditionally, law schools have given separate course treatment to Property Law, Public Lands Law, Federal Indian Law, Water Law, Wildlife Law, Ocean and Coastal Law, and the like. While all of these courses deal fundamentally with ownership questions, they rarely present a unified ownership construct to guide resolution of natural resources issues. Instead, the different fields of specialty have emerged with little reference to the ownership law of the others. This section of the text focuses exclusively on the ownership of natural resources and presents the property foundation that connects the various fields. It describes an overall framework within which to situate federal, tribal, state and individual ownership, and emphasizes the role ownership plays in ecosystem management. Later sections of the text provide in-depth coverage of the regulatory aspects of natural resources law. Federal, state, and tribal ownership in the United States; www.nwi.org/ Most people are unaware of the complex structure of ownership in the United States. The general public often thinks of ownership in simplistic terms as private property ownership. In fact, however, ownership of land and natural resources is both private and public. Individuals and corporations have private ownership, and the federal government, states and tribes have governmental (often termed “sovereign”) ownership. The land base of the United States (excluding trust territories) consists of approximately 2.3 billion acres. Of this, the federal government owns nearly a third of the land, or 730 million acres. States own approximately 196,924,100 acres. Tribes own about 56,000,000 acres. Such governmental entities exert different preferences for land and resource management depending on their public constituencies, bureaucratic makeup, and political factors. Moreover, a vast number of non-profit conservation land trusts are gaining property rights in land through consensual transfers by private property owners. Land trusts now own or have easements on 887,000 acres. This ownership, while not governmental, is quasi-public, because the mission of such land trusts is to benefit the public as a whole. Websources For a chart depicting acreage owned by federal, tribal, and state governments on a state-by-state by-state basis, see www.nwi.org. (National Wilderness Institute) A picture of ownership in the United States is complicated by the fact that in many instances a parcel of land may have many different strands of ownership. We sometimes think of ownership as absolute and exclusive. The "fee simple" title is, of course, the maximum of legal ownership. But a parcel held in fee may also be subject to express or implied easements allowing others interests in that property. Such encumbrances may benefit government and its citizens. Throughout history sovereigns (the federal government, tribes, and states) have conveyed part of their landholdings to other sovereigns or individuals, yet still retained some property rights. In some cases, such property rights are implied by courts for the first time decades after the transfer. These property rights, which could be described categorically as sovereign servitudes, operate as easements on the land, and can limit the future property owners' use of the land. Retained sovereign property rights are distinct from regulatory mechanisms enforced by governments. Sovereign servitudes may be implied by courts with no express legislative expression. Examples of sovereign servitudes include reserved tribal treaty rights (which may provide access by tribal members across private lands for fishing and hunting), the federal navigational servitude (which allows the federal government to use private lands on some waterways for the purpose of navigation), and public trust easements (which may allow public access across certain portions of private land or preclude private property owners from destroying important resources on their lands). As some scholars point out, the complex interrelationships involved in ownership of land and resources is more aptly summarized as a "web" of property rights, rather than a "bundle" of rights (the classic metaphor traditionally used in first-year property classes). See Craig Anthony Arnold, The Reconstitution of Property: Property as a Web of Interests, 26 Harv. Envtl. L. Rev. 281 (2002). The purpose of this chapter is to present this "web" in a way that highlights the interrelationships of ownership among the federal government, tribes, states, and individuals. Understanding this web of property rights is crucial in dealing with present day natural resource conflicts that span broad ecosystems.
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Post by denney on Aug 8, 2006 0:16:44 GMT -5
Unfortunately, the historic pattern of land conveyance bore little relationship to ecosystem boundaries. In 1785, the early federal government established a rectangular survey system under which lands were divided into square townships. Land Ordinance of 1785, reprinted in Documents of American History 123 (Henry Steele Commager ed., 7th ed. (New York, Appleton-Century-Crofts 1963). Each township was divided into 36 numbered sections, each section containing 640 acres (one square mile). The rectangular survey system formed the reference for all land transactions thereafter, but it has no relation to ecosystem demarcation. Because land transfers have been accomplished according to these unnatural square dimensions, most ecosystems contain a fragmented puzzle of ownership. An action in one part of an ecosystem inevitably affects other parts of the system, creating natural resource conflicts extending well beyond the boundaries of the action parcel.
We begin sorting through the puzzle of ownership in Part I, below, which presents a basic historical foundation of title to property in the United States. Part II then reviews the Constitutional framework that governs the property relationships between the various sovereigns and individuals. Part III presents the various types of sovereign ownership in critical public natural resources, such as streambeds, water, and wildlife. Later chapters in this section examine in more detail the various categories of ownership and the doctrines that shape how public and private actors may exercise their ownership prerogatives.
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Post by denney on Aug 8, 2006 0:18:04 GMT -5
I. THE HISTORICAL FOUNDATION OF OWNERSHIP: FEDERAL ACQUISITION AND DISPOSITION OF PROPERTY IN THE
UNITED STATES
The picture of ownership throughout the history of the United States has been one of constant change since white contact with indigenous peoples. Understanding the broad upheavals and shifts in ownership will provide an orientation for the more detailed materials that follow. The United States government initially acquired land from native nations, European nations, and the original 13 colonies. Treaties, statutes, and executive orders formalized the transfer of native lands to the United States, but also guaranteed retained lands (“reservations”) and occasionally easements for continuing tribal use. Many of these instruments promised secure property rights for tribes "as long as water flows or grass grows upon the Earth." See Treaty with the Navajo Indians of 1868, 15 Stat. 667. After the original land acquisitions from the tribes, the federal government embarked on a program of "disposition," transferring lands to states, individuals, and corporations, but it ultimately retained about a third of the land base of the United States in federal ownership. Within just a century after making solemn promises of land rights to tribes in the treaties, the federal government broke up about 2/3rds of the tribal land base during what is called the Allotment Era (1887 - 1934), converting much tribal ownership to individual ownership. Indian General Allotment Act, 25 U.S.C.S. §§ 331-334 (2001) (§§ 331-333 repealed 2000). Approximately 90,000,000 acres of "allotted" land eventually fell into non-Indian ownership through tax foreclosures and subsequent sales on the private market.
The modern era has been a period of immense change in sovereign ownership. States are increasingly asserting property rights in streambeds held by private parties. Numerous land transfers and exchanges are taking place between the federal government, states, and individuals to consolidate ownerships. Many tribes are adding to their land base through purchase or settlement of land claims. Some tribes have succeeded in resurrecting dormant land claims, gaining management authority over portions of the lands they ceded as far back as the late 1700s. Additionally, over 1,200 non-profit land trusts in the country are quickly gaining property rights in critical lands and resources. Conservation easements acquired by these land trusts add another complex ownership layer to title. Moreover, modern court rulings at the state and federal level are also expanding sovereign property rights to water, wildlife, and submersible lands. While the various eras of ownership in this country overlap considerably, the table below depicts a layering of various property rights emerging from the significant periods of transition. The materials that follow trace these developments in further detail.
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Post by denney on Aug 8, 2006 0:20:24 GMT -5
The Modern Era: land exchanges between federal and state governments; assertion of tribal property rights; private sector land transactions; conservation trust movement; court rulings recognizing implied sovereign servitudes The Disposition Era: federal land grants to the private sector (railroads, miners, homesteaders, ranchers and others) Creation of States, Allotment Era: federal land grants to states; breakup of many (not all) Indian reservations into “allotments,” with later forfeiture of considerable land and sale into private non-Indian hands Federal Government Acquisition: from European nations, original 13 colonies, and native nations; removal of many tribes away from aboriginal territory; Indian reservations established Original 13 Colonies: native land grants to some colonies/individuals European “Discovery” Claims: England, Spain, France, Russia territorial claims; treaties between European nations and some native nations; European land grants to some individuals (later generally recognized by federal government as valid) Pre-‘discovery” Native Ownership: aboriginal territorial boundaries of native nations reorganized but sometimes influx was due to war or other conditions
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Post by denney on Aug 8, 2006 0:21:08 GMT -5
A. Acquisition of Land From European Powers and Native Nations The origin of title begins with native aboriginal territories. For millennia prior to the onset of European conquest, native peoples lived within defined territories spanning nearly all of what is now the United States. Their societies revolved around use and management of natural resources, with hunting, fishing, gathering (and, in some limited cases, farming) as central economic enterprises. Relationships of tribes to one another varied, some marked by nearly constant war, and others marked by trade and cultural exchange. The native population within the United States is estimated by some at 750,000 in the year 1500. Dating back to medieval times, however, European monarchs asserted a right of conquest over all non-Christian native people in the world. This position, called the "right of discovery," has its origins in the doctrine of the Catholic Church, which was the dominant legal institution of Western Europe. The Pope proclaimed himself the "divinely designated shepherd of Christ's Universal Flock, vested with a supreme spiritual jurisdiction over the souls of all humankind." See Robert A. Williams, Jr., The American Indian in Western Legal Thought: The Discourses of Conquest, 15-21 (Oxford University Press 1990). Catholic legal doctrine extended jurisdiction over all "infidels" to enforce adherence to Christ. These ideas were solidified into a Catholic legal framework that purported to justify conquest of the New World by Christian European monarchs. Id. When Christopher Columbus "discovered" the already inhabited territory called the "Indies" on behalf of the Spanish Crown, Pope Alexander VI issued an edict confirming Spain's claim. Bull “Inter caetera Divinae” of Pope Alexander VI Dividing the New Continents and Granting America to Spain, May 4, 1493, cited in David H. Getches, Et.Al. Cases and Materials on Federal Indian Law 43 (4th Ed. 1998). In 1497, King Henry VII of England issued a charter to the Italian captain John Cabot "to seek out, discover, and find whatsoever isles, countries regions or provinces of the heathen and infidels whatsoever they be, and in what part of the world [where]ever they be, which before this time have been unknown to all Christians . . . " Reprinted in Documents of American History 5-6 (Henry S. Commager, ed. 8th ed., 1968). Cabot landed on the shore of what is now New England in 1497, launching England's colonial rule on the continent. Though Justice Marshall later remarked in a foundational property law case how "extravagant the pretension of converting the discovery of an inhabited country into conquest may appear," the U.S. Supreme Court ruled that European "discovery" gave rise to European sovereign property rights overlying the existing aboriginal title. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L. Ed. 681 (1823). Territorial map, indicating modern state boundaries, from the DOI US Geological Survey 1970 Atlas, available at memory.loc.gov/cgi-bin/ampage?collId=setlmap&action From 1607 to 1732, 13 colonies were formed under charters issued by the British Crown. They became the present states of Virginia, New Jersey, Massachusetts, New Hampshire, Pennsylvania, New York, Maryland, Connecticut, Rhode Island, Delaware, North Carolina, South Carolina, and Georgia. Each of the colonies entered into treaties with tribes for the purchase of lands. At the same time, other European nations (France, Spain, and Russia) exerted discovery rights over other parts of what is now the United States and established colonial settlements pursuant to charters. These nations also entered into treaties with some tribes for the purchase of Indian lands. Following the Revolutionary War with England, the new nation of the United States consisted of two sovereigns -- the states and the federal government. The newly formed states succeeded to the ownership of land asserted by the predecessor colonies. The infant federal government initially had no land ownership in these 13 states. Accordingly, seven of the 13 original states relinquished to the new federal government territory they claimed west of their borders extending up to the Great Lakes region. This was the first federal public domain, from which new states were formed. The subsequent process of land acquisition to create the present borders of the United States involved extinguishing claims from two types of sovereigns: native nations that asserted aboriginal title, and European nations that asserted "discovery" rights over that title. In 1800, Spain ceded part of its claims (523 million acres comprising the Louisiana Territory) to France. President Jefferson made the famous Louisiana Purchase from Napoleon, ruler of France, in 1803. Spain surrendered Florida to the United States in 1819. The U.S. annexed Texas in 1845, and in 1846 the federal government gained 180 million acres of land north of California through the Oregon Compromise with Great Britain. The 1848 Treaty of Guadalupe Hidalgo formalized cessions from Mexico of most of the Southwest, including California. The U.S. acquired Russian claims to Alaska in 1867. The Republic of Hawaii ceded its sovereignty and its 1.8 million acres to the U.S. in the Annexation Act of 1898. Prior to these cessions of land to the United States, these nations had made various land grants to individuals, totaling some 34 million acres across 19 states. In the treaties of cession with Great Britain, Spain, France and Mexico, the United States recognized the title held by individuals to this property, and such land never came into federal ownership. While disputes over this land were contentious and long-lived, nearly all of the prior grants made by foreign governments were upheld in the courts. See generally felix S. Cohen, Handbook of Federal Indian Law, 56 and Ch. 2, Sec. A1 (1982). In extinguishing European claims to territory, the United States gained a “discovery” right to those lands, but not complete title. Native title still covered most of the land (with a few exceptions, such as where Northeastern tribes had already ceded some of their territory to the colonies). The relationship of European property claims (and, by succession, United States' claims) to aboriginal title was decided in an 1823 Supreme Court case, Johnson v. McIntosh, 21 U.S. 8 (Wheat) 543 (1823). The ruling forms the federal common law foundation for property rights in this country. It was also the first of three landmark opinions by Justice Marshall delineating the sovereign role of native nations within the United States. See also Cherokee Nation v. Georgia., 30 U.S. (5 Pet.) 1 (1831); Worchester v. Georgia., 31 U.S. (6 Pet.) 515 (1832). In Johnson v. McIntosh, the Supreme Court ruled that tribes held only a “right of occupancy,” – something less than full fee simple absolute – and that such native title could only be conveyed to the United States as the “discovering” nation. Conveyances by tribes to individuals, therefore, were invalid. Johnson v. McIntosh created a different ownership system for native property in the traditional United States and established a structure of federal-tribal ownership relations that endures to this day. Map of native territory at time of white contact, U.S. Geological Society, available at rockyweb.cr.usgs.gov/outreach/lewisclark/indianlandsmaps.html
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Post by denney on Aug 8, 2006 0:22:11 GMT -5
JOHNSON v. McINTOSH
Supreme Court of the United States, 1823
21 U.S. (8 Wheat.) 543, 5 L. Ed. 681
Mr. Chief Justice MARSHALL
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim ascendancy. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary to establish a principle . . . that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.
The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented. ***
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.
While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all to convey a title to the grantees, subject only to the Indian right of occupancy. ***
No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. The documents upon this subject are ample and complete. So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. To this discovery the English trace their title.
*** The right of discovery given by this commission is confined to countries 'then unknown to all Christian people;' and of these countries Cabot was empowered to take possession in the name of the king of England. Thus asserting a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. *** Thus has our whole country been granted by the crown while in the occupation of the Indians. These grants purport to convey the soil as well as the right of dominion to the grantees. *** Thus, all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognized in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians. ***
By the treaty which concluded the war of our revolution . . . the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. ***
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. ***
We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. *** It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it. ***
However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that 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. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.***
Notes and Questions 1. What was the European "right of discovery" inherited by the United States? How does it mesh with the Indian "right of occupancy?" How do the two rights fit into a classic ownership paradigm? The Johnson opinion tests the ability of lawyers to walk that fine line between oversimplifying a case and yet reducing the doctrinal complexity into manageable rules that can be applied in concrete situations. One approach might be to think of the federal and tribal rights as together making up complete title. When the native nations conveyed their title, described as the “right of occupancy,” to the United States, their claims to the land were “extinguished.” The “right of occupancy combined with the “right of discovery vested full title (fee simple absolute) to the United States which it then conveyed to states, individuals, and corporations. In some cases the native transfer of title came with a reservation of easements for hunting and fishing rights. Such easements encumbered the federal “patents” (deeds) to private owners, and continue to provide the basis of tribal rights today. See United States v. Winans, 198 U.S. 371 (1905).
2. Could the Johnson case have arrived at the same result by using a different rationale not premised on Christian nation superiority? Rather than saying tribes didn't have a full property right to sell, could the Court have said that the individuals didn't have the right to deal with tribes because trade with other sovereign nations is an exclusive prerogative of the federal government?
3. Consider one scholar's assessment of Johnson:
Johnson's acceptance of the Doctrine of Discovery into United States law represented the legacy of 1,000 years of European racism and colonialism directed against non-Western peoples. White society's exercise of power over Indian tribes received the sanction of the Rule of Law in Johnson v. McIntosh. The Doctrine of Discovery's underlying medievally derived ideology - that normatively divergent "savage" peoples could be denied rights and status equal to those accorded to the civilized nations of Europe -- had become an integral part of the fabric of United States federal Indian law. . . . [T]he original legal rules and principles of federal Indian law set down by Marshall in Johnson v. McIntosh and its discourse of conquest ensured that future acts of genocide would proceed on a rationalized, legal basis.
Robert A. Williams, supra at 325-26. To what extent did Christian doctrine influence the legal treatment of native property rights? Would the Johnson v. McIntosh opinion survive Constitutional scrutiny today? It remains the foundation of “black letter” Indian law.
4. The common law rule handed down in Johnson v. McIntosh was codified into statute by the Trade and Intercourse Acts of 1790 – 1834, which prevented the conveyance of any Indian lands without approval of the federal government. 1 Stat. 138, 25 U.S.C. § 177. This prohibition remains operative today. The federal government holds Indian land and resources in “trust” for the tribes. The federal title is described as "naked fee," because the federal government must manage such land solely in the interest of the Indian beneficial owners. United States v. Shoshone Tribe of Indians, 304 U.S. 111, 116 (1938). While the system of federal trust ownership has been criticized as paternalistic, it has likely preserved a native land base that otherwise would have been sold off in the face of market pressure.
Indeed, some of the east coast tribes have successfully reclaimed title to lands that they long ago sold to private or state individuals without federal approval in violation of the Trade and Intercourse Acts. In Oneida County v. Oneida Indian Nation of New York., 470 U.S. 226 (1985), the Oneida Nation sued two New York counties alleging that their ancestors conveyed 100,000 acres to the State of New York under a 1795 agreement that violated the Trade and Intercourse Act of 1793. Claiming that the historic transaction was void, the Oneidas' sought damages representing the fair rental value of land owned and occupied by the Counties of Oneida and Madison. Finding no statute of limitations to prevent the action, the Supreme Court upheld a common right of action to sue under the Trade and Intercourse Acts. As the Court explained:
By the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe's interest in its property and how those interests could be conveyed. It was accepted that Indian nations held "aboriginal title" to lands they had inhabited from time immemorial. The "doctrine of discovery" provided, however, that discovering nations held fee title to these lands, subject to the Indians' right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign.
With the adoption of the Constitution, Indian relations became the exclusive province of federal law. From the first Indian claims presented, this Court recognized the aboriginal rights of the Indians to their lands. The Court spoke of the "unquestioned right" of the Indians to the exclusive possession of their lands, Cherokee Nation v. Georgia, 5 Pet. 1, 17, (1831), and stated that the Indians' right of occupancy is "as sacred as the fee simple of the whites." This principle has been reaffirmed consistently. Thus . . . "the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case."
Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal common-law right to sue to enforce their aboriginal land rights. [T]he Indians' right of occupancy need not be based on treaty, statute, or other formal Government action. We stated that "absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law."
In keeping with these well-established principles, we hold that the Oneidas can maintain this action for violation of their possessory rights based on federal common law. ***
One would have thought that claims dating back for more than a century and a half would have been barred long ago. [H]owever, neither petitioners nor we have found any applicable statute of limitations or other relevant legal basis for holding that the Oneidas' claims are barred or otherwise have been satisfied. Oneida County, 470 U.S. at 234-54.
The Oneida precedent led to Congressional settlements of such claims, most of which occurred during the 1970’s. See, e.g. Maine Indian Claims Settlement Act, 25 U.S.C.A. §1721-1735 (2000). In 1990, the Cayuga Indian Nation won a suit against the State of New York for its violation of the Nonintercourse Act, stemming from New York’s acquisition of 64,000 acres once owned by the Cayuga. Cayuga Indian Nation of New York v. Cuomo, 730 F.Supp. 485 (N.D.N.Y. 1990). And in 2000, the Alabama-Coushatta Tribe won a case asserting unextinguished aboriginal title to 5.5 million acres of land in East Texas. Alabama-Coushatta Tribe of TX v. United States, No. 3-83, 2000 WL 1013532 (Ct. Fed. Cl., June 19, 2000). The tribe called upon Congress to settle the land claims. For other land claims, see John Kelly, Indian Tribes Pressing Land Claims associated press, (Feb. 10, 2001).
Historians often describe the growth of the United States as the "settlement" of the frontier, but perhaps the "unsettlement" is more accurate. Tribal communities had been established across the vast landscape, in many cases for thousands of years, although skirmishes between tribes were constant, and territorial boundaries fluctuated. The federal government displaced or altogether eradicated native settlements in order to open the way for non-Indian proliferation. Extending the new nation's dominion into the western "frontier" involved the threefold process of extinguishing Indian title to land, creating new states, and disposing of the acquired land to encourage new settlement by non-Indians.
The federal process of "extinguishing" Indian title – or the native "right of occupancy" -- followed immediately on the heels of acquiring European claims. Until 1871, the federal government extinguished Indian title through use of treaties, a legal tool reserved for establishing sovereign relationships between nations. After 1871 the federal government used statutes, commonly called "treaty substitutes." Indian treaties and treaty substitutes represent the foundational "deeds" to land in most areas within the lower 48 states. They conveyed away the native right of occupancy across those lands ceded to the federal government (called "ceded lands"), and secured reduced areas of land (called "reservations") for tribal homelands.
In some cases the established reservation was part of the original aboriginal territory of the tribe, but in other cases the tribe was removed - often with tragic consequences - to lands far away from its ancestral homeland. Beginning in the late 1700s federal officials began developing a "removal" policy designed to force tribes east of the Mississippi to relinquish their lands in exchange for a permanent Indian territory west of the Mississippi in what is now the state of Oklahoma. The policy culminated in the Removal Act of 1830, Ch. 148, 4 Stat. 411-12 (1830). One of the most studied applications of removal policy involved the Cherokee Nation, which once had aboriginal lands spanning five states east of the Mississippi. Treaties reduced the Cherokee land to a territory primarily within the state of Georgia, and when gold was discovered on these remaining lands, the state of Georgia sought to oust the Cherokee Nation. Despite a forceful opinion by Justice Marshall confirming the sovereignty of the Cherokee Nation and denying authority to the state of Georgia, President Jackson "removed" the Cherokees from their ancestral lands, forcing over 16,000 Cherokees to travel the "Trail of Tears” to Oklahoma Territory–a genocidal journey during bitterly cold winter conditions in which nearly half (8,000) of the victims died along the way or shortly after arrival. See Russell Thornton, The Demography of the Trail of Tears Period: A New Estimate of Cherokee Population Losses, in Cherokee Removal 75 (William L. Anderson ed., 1991).
B. The Treaty Process
The use of treaties to formalize native land cessions affirmed the sovereign status of the tribes. But despite the legal characterization of treaties as "contracts between nations," Washington v. Washington State Commercial Passenger Fishing Vessel a--’n, 443 U.S. 658, 675 (1979), the treaty process was not nearly as bilateral as the term suggests. Consider the following evaluation:
After 1815, United States Indian policy became necessarily responsive to the westward expansion, and treaties were used to remove the Indian tribes from the path of the ever-advancing white civilization. From the Indian’s point of view, it was a Hobson’s choice. Theoretically, they could keep their land and be over-run by white settlers. Or, they could sell their land, their ancestral heritage, and remove to a new site. Certainly no happy solution to such a dilemma could be found under the best of circumstances. ***
The results of treaty negotiations were almost always unsatisfactory to the Indians. Friendly Indians were commonly selected as chiefs by federal officials and given power and prestige over tribes that had their own methods for selecting leaders. Some treaties purported to bind Indian tribes not present at negotiations by the signatures of unauthorized head men who were unaware that their signatures would bind those tribes. There are numerous accounts of threats, coercion, bribery, and outright fraud by the negotiators for the United States. Given these factors, it is natural that the Indians generally felt ashamed and angry at the close of negotiations.
Indian tribes at treaty negotiations also faced a language barrier. The Indian treaties were written only in English, making it a certainty that semantic and interpretational problems would arise. When several Indian tribes were involved, the government negotiators would sometimes use a language they believed to be common to all tribes but which in fact carried different meanings to each.
Charles F. Wilkinson & John M. Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows or Grass Grows Upon the Earth”—How Long a Time is That?, 63 Cal. L. Rev. 601, 608-19 (1975).
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Post by denney on Aug 8, 2006 0:23:17 GMT -5
In Focus: Federal Removal of the Wallowa Band of Nez Perce Indians
The Nee-Me-Poo people ("The People"), known as the Nez Perce Tribe, was comprised of several bands, each having their own leader, and each claiming distinct homelands within an aggregate aboriginal territory encompassing 13 million acres throughout central Idaho, southeastern Washington, and northeastern Oregon. The Wallowa Band of Nez Perce Indians had its ancestral homeland in the beautiful Wallowa Valley of northeastern Oregon. A treaty of 1855 reduced the Nez Perce aboriginal land base to about 7 million acres, but the Wallowa Valley remained in the Band's possession under the leadership of a chief known now as Old Joseph. After gold was discovered in the Nez Perce homeland in the 1860's, however, settlers and miners swarmed in to claim land and resources. In 1863, the federal government sought a new treaty ceding more lands, and the government negotiators designated Chief Lawyer, a leader who had integrated himself among the whites, as the designated agent to cede land on behalf of all of the Nez Perce Indians.
In Nez Perce governance, however, Chief Lawyer had no authority to act on behalf of the other bands. Despite this lack of authority, Chief Lawyer signed a treaty ceding ninety percent of what remained of the tribal lands -- including the Wallowa Valley -- to the federal government. Only 750,000 acres of land were retained for the Nez Perce, in Lapwai, Idaho, where Chief Lawyer's band made its home, and where the Nez Perce Reservation remains today. Old Joseph and several other leaders refused to sign the 1863 treaty.
The Wallowa Band of Nez Perce Indians clung to their homeland despite the 1863 treaty conveying it away. In 1871, just before he died, Old Joseph passed leadership of the band to his son, Hin-mah-too-yah-lat-kekht (“Thunder Rolling in the Mountains”), known today as Chief Joseph. As later recounted by Chief Joseph in a speech before Congress:
M]y father sent for me. I saw he was dying. I took his hand in mine. He said, "My son, my body is returning to my mother earth, and my spirit is going very soon to see the Great Spirit Chief. When I am gone, think of your country. You are the chief of these people. They look to you to guide them. Always remember that your father never sold his country. You must stop your ears whenever you are asked to sign a treaty selling your home. A few years more, and the white men will be all around you. They have their eyes on this land. My son, never forget my dying words. This country holds your father's body. Never sell the bones of your father and your mother." I pressed my father's hand and told him that I would protect his grave with my life. My father smiled and passed away to the spirit-land. I buried him in that beautiful valley of winding waters. I love that land more than all the rest of the world. A man who would not love his father's grave is worse than a wild animal.
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Post by denney on Aug 8, 2006 0:24:01 GMT -5
[Chief Joseph, Indian’s View of Indian Affairs, 128 north american review 412, 419 (Rev. W.H. Hare trans. April 1879). The Wallowa Band of Nez Perces, led by young Chief Joseph, refused to move from its homeland until tensions with white settlers erupted in 1877 and the United States declared war on the small band. Over the course of four months, Chief Joseph led his people, many of whom were women, children, and elders, on a grueling 1,300-mile flight in harsh winter conditions towards Canada, where they sought political refuge. The epic retreat ended just 13 miles south of the Canadian border, where the small band was captured by the U.S. Army. At the Battle of Big Hole, Joseph made his famous surrender speech that included these words: Hear me my chiefs. I am tired, My heart is sick and sad. From where the sun now stands, I will fight no more forever. Chief Joseph www.curtis-collection.com
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Post by denney on Aug 8, 2006 0:24:58 GMT -5
The Wallowa Band of Nez Perces, numbering only 431 after the war, were held as prisoners and sent to Fort Leavenworth, Kansas and then later to Indian Territory in Oklahoma. The swampy conditions were deadly, and during their exile a quarter of the band died, most from malaria, cholera, and malnutrition. Finally, in 1885 the federal government allowed the 268 remaining Nez Perce prisoners to return to the Pacific Northwest, but not to their homeland in the Wallowa Valley. About half of the band went to the Nez Perce reservation in Lapwai, Idaho. The rest, including Chief Joseph, were sent to Nespelem on the Colville Indian Reservation in central Washington, to join with several bands of Indians from Washington. Many descendents of the band still live there today, but they have no recognized legal rights to their Wallowa aboriginal territory, although their spiritual connection with their ancestral homeland is still strong. In an unsuccessful appeal to gain return of his people's homeland, Chief Joseph made a speech to Congress in 1879, which remains one of the most compelling portrayals of the treaty process from the perspective of an Indian leader: Suppose a white man should come to me and say, "Joseph, I like your horses, and I want to buy them." I say to him, "No, my horses suit me, I will not sell them." Then he goes to my neighbor and says to him: "Joseph has some good horses. I want to buy them, but he refuses to sell." My neighbor answers, "Pay me the money, and I will sell you Joseph's horses." The white man returns to me and says, "Joseph, I have bought your horses, and you must let me have them." If we sold our lands to the Government, this is the way they were bought. Chief Joseph, Indian’s View of Indian Affairs, supra at, 419-420. Notes and Questions 1. Why was the treaty of 1863 selling away the Wallowa Nez Perce homeland valid when, under Nez Perce governance, the Indian signers of the treaty had no authority to act on behalf of Old Joseph? In a resounding opinion upholding treaty fishing rights in the Pacific Northwest, the Supreme Court acknowledged, "[T]he territorial officials who negotiated the treaties on behalf of the United States took the initiative in aggregating certain loose bands into designated tribes and even appointed many of the chiefs who signed the treaties." See Washington v. Washington State Commercial Passenger Fishing Vessel Assoc., 443 U.S. 658, 664 (1979). The Wallowa Band pursued compensation for loss of its homeland in a case brought before the Court of Claims in 1941. Accepting the view of the government, the court denied the Band’s claim, holding that the majority’s 1863 actions bound the dissenting minority. Joseph’s Band of the Nez Perce Tribe v. U.S., 95 Ct. Cl. 11 (1941) (“the Nez Perce Tribe, as an entity, had the power to make the treaty of 1863 and that the dissenting minority . . . .was bound by that treaty.”). Consequently, Joseph’s band was left without rights in the Wallowa region. 2. Did U.S. negotiators designate tribal negotiators for expediency? In a period of just seven months between 1854 and 1855 the federal government executed nine treaties with tribes comprising 17,000 Indians, accomplishing cessions of 64 million acres of land in the Pacific Northwest. The treaties (often referred to as the "Stevens treaties") contained nearly identical language fashioned by Isaac Ingalls Stevens, the first governor of the Washington Territory. For background, see Fay Cohen, Treaties on Trial: The Continuing Controversy over Northwest Indian Fishing Rights (Univ. of Washington Press 1986). 3. As a jurisdictional matter, Joseph's Band now remains grouped with the other 11 bands of the Confederated Tribes of the Colville Indian Reservation. The Colville Reservation tribal government is recognized by the United States government, but there is no federal recognition of Chief Joseph's Band as a separate tribe. The practice of grouping various bands and tribes (often historic enemies) on one reservation was common. Often these groupings are evident from the name of the tribe (which includes the term “Confederated” tribes or bands). 4. In 1997, the Nez Perce Tribe purchased 10,300 acres of land in the Wallowa Mountains for use as a wildlife preserve and cultural property. The purchase was accomplished through the help of Trust for Public Lands, a non-profit conservation group. See Last Chance Landscape, Wallowa Lake, oregon news bulletin (Trust For Public Lands), Winter, 2002, vol. 3, no. 1., www.tpl.org
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Post by denney on Aug 8, 2006 0:25:58 GMT -5
Joseph's homeland is still a valley of "winding waters," but it is threatened with numerous development proposals. Ironically, in the center of it all, lies the grave of Old Joseph. One development proposal would place a trophy home subdivision (called the Marr Ranch) next to the gravesite of Old Joseph. The proposal is being fought by the Nez Perce Tribe in Oregon’s land use processes. For commentary, see Mary C. Wood, Trophy Home Proposal Dishonors the Nez Perce, the seattle times, Feb. 11, 2004 at B9.
Old Joseph’s Gravesite, Wallowa Mountains, Oregon
Trophy home subdivision proposed for Wallowa Valley, on bluff next to Old Joseph’s gravesite
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Post by denney on Aug 8, 2006 0:26:48 GMT -5
5. For further research on the compelling story of Chief Joseph and his band, see Linwood Laughy, In Pursuit of the Nez Perces:the nez perce war of 1877. (Mountain Meadow Press 1993); Merrill D. Beal, "I Will Fight No More Forever": Chief Joseph and the Nez Perce War (University of Washington Press 1963); Mark Herbert Brown, Flight of the Nez Perce (University of Nebraska Press 1982); Alvin M. Josephy, The Nez Perce and the Opening of the Northwest (Yale University Press 1965). C. Tribal Reserved Rights The extinguishment of native rights across vast amounts of territory triggered a wave of non-indigenous migration west to the Pacific Ocean. The human geography of the landscape radically changed. Native peoples who had occupied the vast "frontier" for millennia were forced onto reservations that represented a fraction of their aboriginal holdings, and new populated Anglo settlements proliferated in a matter of decades. Within the first five years of the California Gold Rush, 200,000 immigrants entered California. For background on “settlement” of the West, see Patricia Nelson Limerick, The Legacy of Conquest: The Unbroken Past of the American West (Norton, 1987). Across the United States, native subsistence economies that had endured for millennia were replaced by dominant extractive Anglo economies centered around agriculture, grazing, mining, forestry, and industry. Towns sprouted up, railroads were built, and the non-native population exploded. During the California Gold Rush (1848-1852), the population of California grew from 14,000 to 223,000. Between 1780 and 1869 the United States population increased eleven-fold (from 2,781,000 to 31,443,321), and more than doubled again in the subsequent 30 years, rising to 75,994,575 by 1900. James William Hurst: Law and the Conditions of Freedom in the Nineteenth Century United States (Univ. of Wisconsin Press 1956). Amidst an unprecedented cultural, demographic, and economic invasion, the reservation lands guaranteed by treaty were the linchpin critical to preserving a traditional way of life for most tribes. As Professor Charles Wilkinson describes, the treaties were designed to create a "measured separatism" for tribes within a growing majority society embracing very different economic and cultural ways: Implicit . . . was not only the expectation that each tribe would remain a people, but also the perception that a homeland, separate and distinct from the surrounding white culture, was a requisite element of that survival. The essence of these laws, then, as viewed both by Indian tribes and by the United States, was to limit tribes to Indian Land Areas in the United States. Federal Indian Reservations, state reservations, federal Indian groups without reservations. Compiled by the Bureau of Indian Affairs. Available at rockyweb.cr.usgs.gov/outreach/lewisclark/indianlandsmaps.html. significantly smaller domains but also to preserve substantially intact a set of societal conditions and tribal prerogatives that existed then. Charles F. Wilkinson, American Indians, Time, and the Law 18 (Yale Univ. Press 1987). Many treaties contain language reserving to the tribes hunting and fishing rights across the lands ceded to the U.S. government. Tribal leaders realized that the reduced reservation lands could not support the subsistence hunting and fishing necessary to their survival and way of life, so they insisted on continued access to traditional fishing sites and hunting grounds located off the reservation in ceded lands. See Washington v. Washington State Commercial Passenger Fishing Vessel a--’n, 443 U.S. 658, 666-67 (1979). Accordingly, the Stevens treaties of the Pacific Northwest explicitly "secured" the right of taking fish at "usual and accustomed" fishing grounds and stations located off the reservation. Treaties with tribes of the Great Lakes Region also contained promises of continued hunting and fishing. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.172 (1999). In 1905 the Supreme Court interpreted the Stevens treaty language as reserving "easements" underlying later acquired title. United States v. Winans, 198 U.S. 371 (1905). The opinion plays a critical role in establishing the legal property regime in the ceded areas, because it protects treaty fishing easements as pre-existing sovereign servitudes that take precedence over later-acquired individual private property rights.
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Post by denney on Aug 8, 2006 0:27:34 GMT -5
UNITED STATES v. WINANS
Supreme Court of the United States, 1905
198 U.S. 371
Mr. Justice McKenna delivered the opinion of the court:
*** Respondents contend that the words 'the right of taking fish at all usual and accustomed places in common with the citizens of the territory' confer only such rights as a white man would have under the conditions of ownership of the lands bordering on the river, and . . . the respondents further contend that they have the power to exclude the Indians from the river by reason of such ownership. ***
The right to resort to the fishing places in controversy was a part of larger rights possessed by the Indians, upon the exercise of which there was not a shadow of impediment, and which were not much less necessary to the existence of the Indians than the atmosphere they breathed. New conditions came into existence, to which those rights had to be accommodated. Only a limitation of them, however, was necessary and intended, not a taking away. In other words, the treaty was not a grant of rights to the Indians, but a grant of right from them,--a reservation of those not granted. *** The reservations were in large areas of territory, and the negotiations were with the tribe. They reserved rights, however, to every individual Indian, as though named therein. They imposed a servitude upon every piece of land as though described therein. *** [The Indians] were given 'the right of taking fish at all usual and accustomed places,' and the right 'of erecting temporary buildings for curing them.' The contingency of the future ownership of the lands, therefore, was foreseen and provided for; in other words, the Indians were given a right in the land,--the right of crossing it to the river,--the right to occupy it to the extent and for the purpose mentioned. No other conclusion would give effect to the treaty. And the right was intended to be continuing against the United States and its grantees as well as against the state and its grantees. ***
The extinguishments of the Indian title, opening the land for settlement, and preparing the way for future states, were appropriate to the objects for which the United States held the territory. And surely it was within the competency of the nation to secure to the Indians such a remnant of the great rights they possessed as 'taking fish at all usual and accustomed places.' Nor does it restrain the state unreasonably, if at all, in the regulation of the right. It only fixes in the land such easements as enable the right to be exercised.***
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Post by denney on Aug 8, 2006 0:28:19 GMT -5
Notes and Questions 1. The opinion affirms a treaty-based property interest in those lands and waters traditionally used by tribes in the Pacific Northwest. Other decisions affirm tribal interests in traditional resources in the Great Lakes region. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999). The Supreme Court has also held that tribes have implied water rights associated with their reservations. See Winters v. United States 207 U.S. 564, 576-77 (1908). Increasingly, tribes are gaining roles in off-reservation management of natural resources that may affect their interests. See infra Chapter 6. 2. Many usual and accustomed fishing sites in the Pacific Northwest are located in ceded areas that are now in private ownership. The tribal right of access to these fishing sites forms a pre-existing servitude binding later privately acquired private property rights. In the Puget Sound area of Washington State, courts have affirmed the right of tribes to cross private lands in order to harvest shellfish. See United States v. State of Washington, 135 F.3d 618, 638 (1998). Prior to the litigation, many property owners had been unaware that their land was encumbered by treaty rights. To reduce potential conflict, the State of Washington and the treaty tribes have engaged in negotiations over a plan for exercising treaty rights on privately held lands. Ross Anderson, Look Who’s Clamming In My Yard: Rulings Pit Tribes Against Landowners, Seattle Times, February 15, 1998, at B1; David Schaefer, State Seeks Deal With Tribes on Shellfishing, Seattle Times, January 17, 1995, at B3. 3. The native claims of Hawaii and Alaska were extinguished outside of the treaty framework, because those states entered the Union long after the treaty practice had ended. The Hawaiian Islands had been governed under a united native monarchy. While the United States had initially recognized Hawaii's independence, the United States Navy invaded Hawaii in 1893, ultimately causing the reining monarch, Queen Liliuokalani, to yield her authority to the United States, under protest. Congress recognized Hawaii as an official territory in the Organic Act of 1890, and admitted Hawaii as the 50th state in the union in 1959. See Native Hawaiian Rights Handbook (Melody Kapilialoha MacKenzie ed., Univ. of Hawaii Press 1991). The system of land and resource rights in Hawaii is quite complex and unique to Hawaii’s own history of land tenure. Prior to Western contact, the prevailing property system in Hawaii was very similar to a feudal hierarchy, with islands divided into self-supporting pie-shaped units, called ahupuaa, that ran from the beaches to the mountain tops. Neil M. Levy, Native Hawaiian Land Rights, 63 Cal. L. Rev. 848, 849 (1975). Each unit was controlled by a chief and land manager, and populated by farmers. Id. Although farmers were obligated to provide labor, they were able to use all the resources of the ahupuaa and leave if they were unhappy with its management. Id. Hawaii was unified, with the exception of Kauai, under King Kamehameha I, by 1795. Id. at 850. In response to Western pressure on Hawaiian lands, King Kamehameha III developed a system for dispersing land into private ownership (even though private ownership was a foreign concept in Hawaiian culture), because he believed this would protect native Hawaiian’s rights to their land. See Eric Steven O’Malley, Note: Irreconcilable Rights and the Question of Hawaiian Statehood, 89 Geo. L.J. 501, 506 (2001). Hawaiian land was dispersed in a process called the Great Mahele in 1848 (distributing 1 million acres for royalty, 1.5 million acres for the public, and 1.5 million acres to the chiefs). Levy, supra at 855. Traditional rights associated with the ahupuaas remain, however. The Hawai’i Constitution (1978) imposes a duty on the State to protect “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants who are descendants of native Hawaiians . . . .”hi const. art. XII, § 7. The Hawaii Supreme Court continues to recognize such rights. See Public Access Shoreline Hawai v. Hawai’i County Planning Commission, 903 P2d. 1246, 1268 (Haw. 1995), cert denied, 517 U.S. 1163 (1996) (noting, “the western concept of exclusivity is not universally applicable in Hawai’i . . . [T]he issuance of a Hawaiian land patent confirmed a limited property interest as compared with typical land patents governed by western concepts of property”). With the increasing Western ownership of Hawaiian land, the situation of native Hawaiians steadily worsened. The federal government tried to remedy the negative effects of Western settlement through creation of two separate land trusts. The 1920 Hawaiian Homeland Commission Act created the first trust. This legislation reserved 200,000 acres of state land for the purpose of “rehabilitating the Hawaiian race.” H.R. Rep. No. 67-236, at 1 (1921). Though the intent of this act was to provide native Hawaiians with land for homes and farms, less than 20 percent of the trust’s land has been transferred to native Hawaiians, and much of the trust land has been acquired and developed by non-natives. See O’Malley, supra, at 521. Hawaii’s Admission Act legislation created the second trust in 1959. Admission Act, Pub. L. No. 86-3, § 5(c), 73 Stat. 4 (1959). This legislation transferred 1.2 million acres from public and crown lands still existing at the time of admission to the state of Hawaii to benefit native Hawaiians. Both trusts have been plagued with administrative difficulty and their effectiveness is widely questioned. For discussion, see O’Malley, supra. 4. Native Alaskan aboriginal title was extinguished by the Alaska Native Claims Settlement Act (ANCSA), passed in 1971. P. L. No. 92-203, 85 Stat. 668, 43 U.S.C. 1601 et. seq. ANCSA revoked all prior reservations that had been set aside for native use and set up a corporate structure under state law to hold native lands. The statute created 12 regional corporations and over 200 village corporations chartered under state law, and conveyed 44 million acres of land and $962 million to these corporations. Native Alaskans born prior to Dec. 18, 1971 received shares in the corporations. As the Supreme Court interpreted the Act in Alaska v. Native Village of Venetie Tribal Gov’t, 522 U.S. 520, 521 (1998), “ANCSA ended federal superintendence over [native] lands. . . .[and was] intended to avoid a ‘lengthy wardship or trusteeship.’” (quoting 43 U.S.C. 1601(b)). Under ANCSA, the native corporations could immediately convey former reservation lands to non-natives. There was a restriction against alienating stock to non-natives for 20 years, until 1991. Under this corporate scheme, many corporations began selling off their lands. In 1987, Congress passed amendments to ANCSA extending into perpetuity the prohibition against individuals alienating stock to non-natives, but the amendments allowed corporations to eliminate the restriction in their articles of corporation. Pub. L. No. 100-241, 101 Stat. 1788. The Amendments also allowed corporations to transfer some of the ANCSA lands and assets into trusts to help secure the native land base in perpetuity. The ANCSA corporate structure has triggered tremendous criticism for its effect on Alaska native culture and the land base. See Benjamin Thompson, The De Facto Termination of Alaska Native Sovereignty: An Anomaly in an Era of Self-Determination, 24 Am. Indian L. Rev. 421 (2000). Alaska native subsistence rights were not mentioned in ANCSA, but in 1980 Congress passed the Alaskan National Interest Lands Conservation Act (ANILCA) which included a provision establishing priority for rural subsistence uses (though not expressly native uses) on federal public lands. 16 U.S.C. 3114 (2000). For interpretation of the statute’s reach, see Amoco Production Co. v. Village of Gambell, Alaska, 480 U.S. 531 (1987); State of Alaska v. Babbitt, 72 F.3d 698 (9th Cir. 1995). For commentary on the native subsistence protection provided by the statute, see Joris Naimen, ANILCA Section 810: An Undervalued Protection for Alaskan Villagers’ Subsistence, 7 Fordham Envtl. L. J. 211 (1996). D. The Creation of States and the Disposition of Federal Property 1. The Creation of States Ownership patterns differ markedly between the eastern and western United States due to the historical context of statehood. The amount of federal public land within states has always been a point of contention embroiled in assertions of state sovereignty. The federal government has huge landholdings amounting to 350 million acres in the eleven continental western states, yet only minimal ownership within the eastern states formed from the original colonies. The admission acts that allowed individual states to enter the Union were often the product of hard-fought compromises concerning the ownership and management of federal public lands. The 13 states formed from the original colonies had no federal land within their borders at the time of creation. The colonies had been the sovereign holders of land, and when the United States was formed, the land passed into the hands of the successor states, not the new federal government. The first block of federal public domain came from the cessions made to the federal government by seven of these original 13 states. These lands were acquired pursuant to a proclamation of 1780 issued by the Congress of the Confederation resolving that these ceded lands would be formed into states with "the same rights of sovereignty, freedom, and independence, as the other states." Resolution of the Continental Congress of October 10, 1780. In 1787 the Congress of the Confederation enacted the Northwest Ordinance which set forth the process by which the territories north of the Ohio River and east of the Mississippi River could become states. Act of July 13, 1787. All together, six new states were formed from the state-ceded lands: Indiana, Ohio, Illinois, Michigan, Minnesota, and Wisconsin. New states thereafter were carved out of the lands ceded by foreign nations, so initial land ownership in these states was in the federal government. The Northwest Ordinance contained two provisions that framed sovereign ownership of land within the new states. Article V declared that new states shall be admitted "on an equal footing with the original states, in all respects whatever." Article IV declared that the new states would "never interfere with the primary disposal of the soil by the United States." For discussion, see Paul W. Gates, History of Public Land Law Development (Washington 1968). 2. The Land Ordinance of 1785 In 1785, Congress passed a statute to bring order to the disposition of property in the United States. The Land Ordinance of 1785 imposed the "grid" survey system on the public lands, dividing all land into consecutive square townships, each containing 36 sections, following the pattern below. The grid system was central to the disposition of federal land. The federal government typically made grants of property to states and individuals by reference to the artificial grid imposed upon the topography, not by reference to any ecosystem boundaries (such as a watershed). The grid system still dominates land transactions today, and nearly all surveys and deeds reference the townships and sections. The grid system was a product of the pressing concerns of the time. Back in 1785, Congress was consumed with settling the country and bringing in income to the federal treasury. Settlement was "unquestionably a value in itself; government was under constant, almost invariably successful pressure to bring land to market . . . ." James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth Century United States 35 (Univ. of Wisconsin Press 1956). In retrospect, shaping federal land disposition around an artificial grid system was foolish in the sense that it divided up ecosystems and thereby greatly complicated all natural resource management thereafter. But two centuries ago when ownership patterns began taking shape, resources were plentiful -- seemingly inexhaustible -- and leaders gave no thought to ecosystem management. Today, natural resource professionals must gain an understanding of the fragmented ownerships and the legal structure governing property rights in order to bring solutions to ecological problems created from the legacy of two centuries ago. In Practice: Connecting Natural Landscapes with Property Boundaries When dealing with any natural resource dispute, whether on a half-acre or two million acres, the natural resource practitioner must understand both the natural features and legal ownerships on a particular landscape. The U.S. Geological Survey has produced maps of most areas of the country. USGS maps are available on the web at geography.usgs.gov. Aerial photos of nearly any place in the United States are also available on the USGS website. But such maps and photos do not show ownerships. Many counties have used Geographical Information System (GIS) technology to superimpose property boundaries on overhead photos of the landscape within their jurisdiction. Using this system, a practitioner can find the precise landscape of concern and determine ownerships correlated, typically, with parcel numbers used by the County Tax Assessor's Office. For an example, see Clark County, Washington’s homepage at www.co.clark.wa.us. Without these tools, it is often cumbersome and expensive to match property boundaries with landscape features. One can hire a surveyor to make a map of a defined area. The surveyor takes deeds containing legal descriptions of the property and locates iron pipes or features that mark corners of the boundaries of the property. Unfortunately, the standard legal descriptions in surveys reference the grid system in a way that is nearly incomprehensible to the lay person. The following sentence from a paragraph-long boundary description gives a flavor: Property situated, being a portion of the S.d. Maxon Donation Land Claim in Sections 2 and 3, Township 1 North, Range 2 East, Willamette Meridian, described as follows: commencing at the Southwest corner of the parcel of land quitclaimed by instrument recorded in Vol. 230 of Deeds, at page 616, County Records, thence along the Southerly line of said parcel, South 71 degrees East 470.02 feet, more or less, to the TRUE POINT OF BEGINNING: thence North 30 degrees, 04' East 70.0 feet; North 37 degrees 18' East 27 feet; North 7 degrees 08' East 24.0 feet . . . to a point in a line parallel with and distant Southerly, measured at right angles, 250 feet from the Southerly right of way line of the Spokane, Portland and Seattle Railway Co, from which point a 3/4"iron pipe monument bears South 74 degrees 49' East 75.55 feet; thence along said parallel line, South 74 degrees 49' East 202.21 feet to a 2" diameter white plastic monument . . . . As a practical matter, the traditional method of describing and recording ownerships is too cumbersome to be of much value to the public. Should every federal, state, and local jurisdiction make GIS landscape technology available to the public? How would such technology stimulate on-the-ground conservation partnerships and projects?
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Post by denney on Aug 8, 2006 0:28:58 GMT -5
3. State Land Grants When the new states were admitted to the Union, they automatically acquired jurisdiction throughout their territory, but they acquired only those lands as set forth in the admission acts. The federal government typically made two types of land grants to states as part of the admission package. The first type were "in place" grants of specified sections in each township. These lands were to support public education. All states received at least sections 16 and 36 in each township, and some states received far more (for example, Utah, Arizona, Nevada, and New Mexico received four sections from each township). Where a state could not make use of "in place" lands in the designated sections because of prior reservations or conflicting claims, it was entitled to select "in lieu" lands as a replacement. See Andrus v. Utah, 446 U.S. 500 (1980). The other type of land grant was for specified purposes (roads, prisons, etc). These were not limited to particular sections of townships, and they varied in acreage. States could select these lands from available federal lands. States also received land from the federal government after admission to the Union. These grants were for various purposes usually geared towards creating a national infrastructure, such as canals, roads, navigation improvements and schools. Congress also granted away millions of acres of swampland to states under the General Swamp Land Act of 1850. Montana provides an interesting example of mixed sovereign ownership resulting from the acquisition and disposition era. Mixed ownership in Montana; blue dots indicate Montana’s school trust lands; The Trust Land Management Division of Montana, available at nris.state.mt.us/nsdi/nris/ab105.gif In aggregate, state land grants created an important category of sovereign ownership in the United States. States own approximately 196,924,100 acres of land. The eleven western states alone own 45 million surface acres of land (an area exceeding all of the New England states). State lands are managed by state land agencies (often called the Department of State Lands). Unfortunately, the method of disbursing land grants across specified sections in each township meant that state lands would be scattered, fragmented and bear an arbitrary relationship to the actual landscape (a condition sometimes referred to as the "blue rash"). For example, in Montana, there are over five million acres of state lands, but the acreage is divided into 16,000 separate parcels dispersed through the state. State land grants often form ownership islands (in-holdings) within a broader federal management area. For example, the State of Wyoming holds over seven sections of Grand Teton National Park, amounting to 4,480 acres of land. State lands often provide valuable ecological services, but they also bear the constant pressure of producing income for public education. Intensive resource extraction on state lands may undermine ecological goals of surrounding federal lands. Potential management conflicts abound across landscapes characterized by mixed sovereign ownerships. A leading study of state lands management concludes: "[The] unvarying grant of particular sections in each township . . . impose a management burden that was doomed to failure almost from the start." Melinda Bruce & Teresa Rice, Controlling the Blue Rash: Issues and Trends in State Land Management, 29 Land & Water L. Rev. 1, 19 (1994). Chapter 7 explores state ownership in further detail.
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Post by denney on Aug 8, 2006 0:29:38 GMT -5
4. Land Grants to Individuals and Corporations
From 1841 on, federal policy promoted the transfer of newly acquired federal lands to small farming families that could build the backbone of a new nation. At the same time the government was driving Indians off their ancestral lands and extinguishing native title, it was encouraging non-Indians to settle upon such lands. The government "disposed" of its new lands through a variety of land grants. The General Preemption Act of 1841 (repealed in 1891) gave title to squatters on the public lands as long as they paid $1.25 per acre and met minimal requirements. The Homestead Act of 1862 gave title to 160 acres of land upon proof of settlement and cultivation for 5 years. The Desert Land Act of 1877 authorized purchase of 640-acre blocks of public land at 25 cents/acre upon showing that such land had been irrigated. The Stock-Raising Homestead Act of 1916 provided for grants of 640-acre tracts of grazing land. Separate land grants were made to military veterans. Land was also sold at auctions, with liberal credit terms.
a. Grants to Miners
When gold was discovered in California in 1848, a swarm of miners descended upon the western states. Most simply trespassed on federal lands. There was little law and order, except a rudimentary system of water and mineral allocation developed in the mining camps organized around the principle "first come first serve." Congress failed to address the situation until 1866 when it passed the first version of a federal mining law, which declared the federal lands free and open to mineral exploration and occupation. Subsequently, Congress passed the Mining Law of 1872, a legal relic that remains in force today. 1872 Mining Law, Ch. 152, §§ 1-16, 17 Stat. 91 (codified as amended in scattered sections of 30 U.S.C. §§ 22-47 (1994)).
Those who discovered a "valuable" mineral deposit on federal lands and contributed necessary assessment work towards that claim on an annual basis gained rights to an “unpatented” mining claim. The mining law also included provisions allowing outright grants of federal lands through issuance of mineral patents (full fee title). Miners could receive patents to the land overlying their claims for $5 an acre (for lode claims), or $2.50 acre (for placer claims). Under the 1872 Mining Law, the federal government has issued approximately 65,000 mineral patents, totaling about three million acres of land. As a result of the Mining Law, much federal land is peppered with mining claims, either unpatented or patented, the latter of which establishes islands of private ownership within the public domain. Some of the patented fee land is within or near national parks or wilderness areas, posing serious conflicts with the ecological or wilderness values of the surrounding federal lands.
Remarkably, the 1872 law still allows conveyance of fee simple absolute title at the prices of $5 or $2.50 an acre. Since 1994, however, Congress has inserted a rider on the Department of Interior's annual appropriation bill that prevents the government from accepting new patent applications. While the 1872 mining law was intended to promote individual entrepreneurship on the frontier, the beneficiaries with the greatest windfall today are the multinational (often foreign) corporations who pay nothing for the minerals they extract and a few dollars per acre for the land they receive in fee simple.
In May 1994, what may have been the most valuable patent application in history ended up on Secretary Babbitt’s desk, a consolidated application from American Barrick involving dozens of mining claims covering a huge deposit in Nevada containing an estimated $10 billion dollars worth of gold in place. After a careful examination determined that all the requirements of law had been met (and after the company paid the $9,000 the Mining Law required it to pay the U.S. Treasury), the Secretary signed the patent, but chose not to do it in the privacy of his office. Instead, he held a press conference where the backdrop was a gigantic check made out to the mining company in the amount of $10 billion and signed ‘the American taxpayer,’ and he took the opportunity to roundly criticize the Mining Law and the failure of Congress to reform it. A few months later, Congress began the practice of including annual moratoria on new patent applications in the Interior Appropriation bill.
Coggins, Et.Al., Public Lands Law: Cases and Materials, 618 (5th ed. 2002.). For coverage of mining see Chapter 5.V.
b. Grants to Railroads
Beginning in 1835, Congress made land grants to railroad companies for the purpose of establishing a national rail transportation system. Cumulatively, the grants total over 100 million acres of formerly public lands. Typically these grants included a right of way for the line itself, as well as odd-numbered square-mile sections along the route for the railroad companies to sell in order to raise capital and encourage settlement. The grants came with the condition that the railroads companies would have to dispose of their lands to homesteaders within a fixed period of time after completing the railroad. The disposition program created huge swaths of checkerboard ownership across the landscape. The railroads owned the odd sections across the 20-80 mile belt, and the federal government (or the states) owned the even-numbered sections. Huge corporate empires grew from the riches of those early public land grants. Large tracts of the railroad grant lands were retained by the railroad companies and later sold to large timber corporations or spin-off corporations, which proceeded to "liquidate" their holdings by clearcutting the ancient forests. This practice left scathed 1-mile sections across the swath in a checkerboard pattern quite obvious in aerial photos. Clearcutting across these landscapes has contributed to the collapse of species such as the marbled murrelet, the spotted owl, and several varieties of native fish. Today, title to those railroad grant lands still generates simmering hostilities, particularly in the forest lands of the western states. See Derrick Jensen Et.Al., Railroads and Clearcuts (Inland Empire Public Lands Council 1995).
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Post by denney on Aug 8, 2006 0:30:19 GMT -5
5. The Allotment Act (Dawes Act) of 1884
As the available land across the "frontier" was consumed by settlers or squatters, the federal government made more land available by abrogating Indian treaties and reducing the reservations. Then, in 1884, Congress passed the General Allotment Act (also known as the Dawes Act), which was designed to break up reservations and convert communal tribal land title into individual fee simple absolute. The Act provided for reservation lands to be surveyed and divided into "allotments" (of 160-acre, 80-acre, and 40-acre parcels) to pass to individual Indians in fee simple after a period of 25 years during which the allotments would be held in "trust" for the individual by the federal government. The "surplus" land (all of the land not used for individual allotments) passed to the federal government to augment the land base available for the new immigrants. General Allotment Act, ch. 119, 24 Stat. 388 (1887). While the proponents of the act claimed philanthropic motives (that the Indians would be more secure in their property if they held fee simple absolute rather than communal title), the main opponent of the act, Senator Teller, called the legislation "a bill to despoil the Indians of their lands and to make them vagabonds on the face of the earth." Delos Sacket Otis, History of The Allotment Policy, Hearings on H.R. 7902 Before the House Committee on Indian Affairs, 73d Cong., 2d Sess., pt. 9, at 428-85 (1934), quoted in David Getches, et. al., Cases and Materials on Federal Indian Law, 168 (4th ed., West 1998).
The Allotment Act had devastating consequences for tribes. Surplus lands for the federal government were often chosen from the prime lands on the reservation, leaving the more barren land for the individual allotments. Though the Act was supposed to nudge Indians into farming pursuits, there was no infrastructure to support farming, and many of the Western lands were far too arid for agriculture. Often, the lands were simply leased out to non-Indian ranchers. When the Indian owners received full title to their individual allotments (after a trust period of 25 years), state taxes began to accrue immediately. With no viable income from their property, the Indian allottees often fell into arrears on the taxes, with the inevitable result that the lands were forfeited to the state and later auctioned off to non-Indians. As a result of the Allotment Act, the total Indian land base dropped from 138,000,000 acres in 1887 to 48,000,000 acres in 1934. The loss of this land base destroyed many traditional fishing and hunting economies, which required extensive territories. Non-Indians proliferated within and around the borders of the reservations to take up residence on the surplus lands or the lands that defaulted out of the allottees' hands. Native culture, which centered on land-based, communal society, faced the additional onslaught of an aggressive federal policy to Christianize the Indians and assimilate them into the mainstream society. With the influx of non-Indians, states increasingly asserted jurisdiction within reservation boundaries, intruding on the traditional domain of tribal governments. See Brendale v. Confederated Tribes and Bands of Yakima, 492 U.S. 408 (1989) (conflict between state and tribal land use regulation on fee lands within the reservation). The Allotment era finally ended in 1934 with the passage of the Indian Reorganization Act. Indian Reorganization Act of 1934 (IRA), 25 U.S.C. §§ 461-479 (1983). The IRA failed to restore any land, but it extended the trust ownership of individual allotments indefinitely, protecting those lands from state taxes. 25 U.S.C. § 462. For a discussion of the Allotment Act and its consequences, see Judith V. Royster, The Legacy of Allotment, 27 Ariz. St. L. J. 1 (1995).
Overall, allotment had a disparate effect on tribes. Some reservations had not been surveyed prior to the repeal of the Allotment Act and therefore escaped allotment altogether. But for many other reservations, the allotment era left a fragmented land base within tribal boundaries. Many reservations have a mix of lands, some held in trust by the federal government for the tribe (tribal trust lands), some held in trust by the federal government for individual allottees (allotments), and some held in fee (fee lands) by Indians or, more often, non-Indians who purchased the parcels after the trust period expired.
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Post by denney on Aug 8, 2006 0:31:00 GMT -5
6. Modern Federal Ownership and Land Exchanges
By the late 1800s the disposition policies of the federal government began to give way to a new era in which the government "withdrew" lands from further disposition and created "reservations" of the remaining lands to serve unique purposes. The creation of Yellowstone National Park in 1872 marked a turning point as the nation began to value conservation for its own sake. In 1891 the General Revision Act extended authority to the President to set aside forested lands as public reservations, creating the foundation for what has become an extensive national forest system. See Charles Wilkinson, Crossing the Next Meridian: Land, Water, and the Future of the West, 122 (Island Press 1992). These and other steps took shape as a new “retention” policy for the remaining federal land that had not been granted to states, individuals, or railroads. The retention policy came about in time to preserve federal ownership over about a third of the land in the United States. The great bulk of this land is in the western states, which collectively have a total of 55%, or 364 million acres, of federal public lands within their boundaries. Some states are dominated by federal holdings. For example, the federal government owns 85% of Nevada, 68% of Alaska, 64% of Idaho, and 64% of Utah. See Bruce & Rice, supra, Table 1.
Though the retention era brought an end to the massive federal give-aways of the prior century, it came after a century of conquest and disposition had imposed a property ownership pattern on the ecological landscape that is fragmented between sovereigns and individuals. The natural resource conflicts of today are in large part the legacy of incompatible property uses resulting from divided ownerships within ecosystems. Not uncommonly, the property management objectives of one owner are undermined by another owner's actions elsewhere in the ecosystem. A stream running off a parcel that has been deforested by a timber corporation may carry so much sediment that it precludes the use of a downstream federal parcel to sustain fisheries. Or a mine located on private property within a national park (recall federal mining patents) may pollute a stream used as a water source by backpackers in the park. Watercourses connect property in ways that traditional boundaries ignore. Accordingly, sound ecosystem management (as well as efficient land management) often requires consolidation of parcels to eliminate intervening incompatible ownerships.
For these reasons, land exchanges are an increasingly prominent part of the ownership picture nationwide. A land exchange is the voluntary trading of land between two parties. It may be carried out between the federal, tribal, and state governments, or between any sovereign and private party (subject to unique limitations if the sovereign is tribal). The Federal Land Policy Management Act (FLPMA) provides authority for the federal government to make such exchanges, as long as they are in the public interest and that the lands exchanged are of "equal value." 43 U.S.C. § 1716 (a) (2003). Moreover, federal land exchanges must satisfy the requirements of the National Environmental Policy Act and other federal laws governing agency action. (See chapter 5). Exchanges between the states and private parties may also be constrained by the federal terms under which the state originally gained title to the property.
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Post by denney on Aug 8, 2006 0:31:43 GMT -5
In Focus – The New World Mine Land Exchange
The Clinton administration conducted numerous land exchanges to resolve environmental conflicts in a seemingly "win-win" manner. In some cases, this tool protected national treasures from being despoiled by private activities. In one example, a land exchange induced a mining company to abandon its claims to minerals located on federal land just outside of Yellowstone National Park. The mining company held an unpatented mining claim gained under the 1872 Mining Act. Its proposed New World Mine project would have included an underground mine, an ore processing mill, a proposed 106-acre tailings pond, a waste rock storage sight, transmission lines, a work camp and access roads, all of which threatened the water, wildlife, and recreational assets of Yellowstone Park.
In 1995, after the United Nations World Heritage Committee declared that the New World mine proposal had placed Yellowstone National park “in danger,” the United States and Crown Butte Mining, Inc. (CBMI) signed a Settlement Agreement in which CBMI relinquished its mineral claims in exchange for $65 million worth of land in Montana. Mark Mathews, It Ain’t Over Till it’s Over, High Country News, September 30, 1996.
Critics might question whether the federal government should have to trade away millions of dollars of valuable public resources to prevent clear damage to a national asset. Could the government simply have precluded the mining activity through regulatory means? Often the regulation fails to prevent ecological damage either because the law is not protective enough or because it is simply not enforced, due to political pressure or lack of funding. The Clinton Administration favored political compromises over strong regulation, and the land swap mechanism proved a favored mechanism in a variety of high-profile resource conflicts. For a discussion of land exchanges, see John H. Cushman, Jr., U.S. Using Swaps to Protect Land, New York Times Sept 30, 1996 at A1.
While land exchanges are useful in consolidating ownerships to promote ecosystem management, they also have drawbacks. They nearly always entail some losses to communities that have interests in the land slated for trade out of the public domain. Such communities, for example, may use the federal land for recreational, cultural, or economic purposes and would be precluded from such use when the area transfers into private ownership. Viewed from this perspective, land swaps are not pure "win-win" solutions. Consider the interests at stake in the following case and the federal procedural protections to safeguard such interests.
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Post by denney on Aug 8, 2006 0:32:16 GMT -5
MUCKLESHOOT INDIAN TRIBE V. UNITED STATES FOREST SERVICE
United States Court of Appeals for the Ninth Circuit, 1999.
177 F.3d 800
PER CURIAM:
Plaintiffs Muckleshoot Indian Tribe, Pilchuck Audubon Society, and Huckleberry Mountain Protection Society appeal the district court's grant of summary judgment on consolidated challenges to a land exchange between the United States Forest Service and Weyerhaeuser Company. Plaintiffs contend that the Forest Service violated the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4332, and the National Historic Preservation Act ("NHPA"), 16 U.S.C. §§ 470-470w.
I. BACKGROUND
Huckleberry Mountain, the land subject to the dispute in this case, is located in the Green River watershed in the Mt. Baker-Snoqualmie National Forest ("the Forest") in the state of Washington. The Forest contains sixteen percent of the wilderness in the Pacific Northwest. Thirteen percent (259,545 acres) of the 1,983,774 acres within the National Forest boundary are privately owned, primarily by Weyerhaeuser and other large corporations. Most of the privately-owned lands are in the southern portion of the Forest, and are intermingled with federal lands in a checkerboard pattern of ownership that remains from the federal land grants to railroads a century ago.
Motivated in large part by a desire to unify land ownership, the United States Forest Service ("the Forest Service") and Weyerhaeuser Company ("Weyerhaeuser") began negotiations for a series of land exchanges pursuant to 43 U.S.C. § 1716, which authorizes the exchange of public lands within the National Forest system where "the public interest will be well served" by the exchange. *** Weyerhaeuser and the Forest Service executed an exchange agreement under which Weyerhaeuser conveyed to the United States 30,253 acres of land in and around Mt. Baker National Forest in return for 4,362 acres of land in the Huckleberry Mountain area. In addition, Weyerhaeuser donated to the United States 962 acres to the Alpine Lakes Wilderness and 1,034 acres for Forest Service management. The National Forest lands that Weyerhaeuser received included old growth, commercial grade timber. The Forest Service also exchanged to Weyerhaeuser intact portions of the Huckleberry Divide Trail, a site important to the Tribe and that the Forest Service found eligible for inclusion in the National Register for Historic Preservation. Weyerhaeuser gave the Forest Service lands that were, for the most part, heavily logged and roaded. Weyerhaeuser intends to log the lands it received in the Exchange. ***
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