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Post by denney on Aug 8, 2006 0:33:13 GMT -5
II. THE NATIONAL HISTORIC PRESERVATION ACT CLAIMS
The Muckleshoot Tribe is made up principally of descendants of tribes or bands that were parties to the Treaty of Point Elliott and the Treaty of Medicine Creek. *** The Tribe alleges that for thousands of years, the ancestors of present tribal members used Huckleberry Mountain for cultural, religious, and resource purposes—uses that continue to the present day. The Forest Service lands exchanged to Weyerhaeuser were part of the Tribe's ancestral grounds.
Section 10 of NHPA requires that, prior to any federal undertaking, the relevant federal agency "take into account the effect of the undertaking on any district, site, building, structure, or object that is included in or eligible for inclusion in the National Register" and "afford the Advisory Council on Historic Preservation . . . a reasonable opportunity to comment with regard to such undertaking." 16 U.S.C. § 470f;. . . . The Exchange was such an undertaking. 36 C.F.R. § 800.2(o).
We have held that Section 106 of NHPA is a "stop, look, and listen" provision that requires each federal agency to consider the effects of its programs. Under NHPA, a federal agency must make a reasonable and good faith effort to . . . avoid or mitigate any adverse effects, 36 C.F.R. §§ 800.8(e), 800.9(c). *** We conclude that the Forest Service has not satisfied NHPA's mitigation requirements. ***
The Tribe . . . claims that the Forest Service's attempt to mitigate the adverse effect of transferring a portion of the Divide Trail, an important tribal ancestral transportation route, was inadequate. We agree. *** The Divide Trail is a 17.5 mile historic aboriginal transportation route. *** In the proposed Exchange, a portion of the intact trail would be transferred to Weyerhaeuser, where it would likely be logged and rendered ineligible for listing. Transfer and destruction of historic property are "adverse" effects. See 36 C.F.R. § 800.9(b).
The regulations offer three options to mitigate an otherwise adverse effect so that it is "considered as being not adverse," two of which are implicated here. 36 C.F.R. § 800.9(c). First, an agency may conduct appropriate research "when the historic property is of value only for its potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research . . . ." 36 C.F.R. § 800.9(c)(1)(emphasis added). Second, an adverse effect becomes "not adverse" when the undertaking is limited to the "transfer, lease, or sale of a historic property, and adequate restrictions or conditions are included to ensure preservation of the property's significant historic features." 36 C.F.R. § 800.9(c)(3)(emphasis added). The Tribe insists that the Forest Service elected the wrong remedy. We agree.
To mitigate the adverse effect of the Exchange, the Forest Service proposed to map the trail using a global positioning system and to photograph significant features along the trail. It rejected an easement or covenant because it concluded that it was too expensive and impractical to monitor Weyerhaeuser's land practices, and because "only" 25 percent of the eligible miles of trail would be transferred out of federal ownership. It also rejected the imposition of conditions to prevent logging and other degradation. *** The parties agree that the trail is likely to be logged if it is transferred. ***
The Forest Service did not, and could not, proceed under (c)(1). Under 36 C.F.R. § 800.9(c)(1), research is appropriate mitigation where the historic property is of value only for "its potential contribution to archeological, historical, or architectural research." The Muckleshoots value the Divide Trail for more than its "potential contribution to . . . research." ***
While we do not decide whether the Forest Service's reasons for rejecting deed restrictions were valid, we note that it could have removed the trail from the Exchange as it did with Mule Springs. We conclude that documenting the trail did not satisfy the Forest Service's obligations to minimize the adverse effect of transferring the intact portions of the trail. ***
We hold that the Forest Service failed to meet the requirements of NHPA . . . .
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Post by denney on Aug 8, 2006 0:33:59 GMT -5
Notes and Questions
1. The case demonstrates the mix of property rights on land, a result of the conquest and disposition eras. Here, the Muckleshoot Tribe was the aboriginal owner, and continued its use of ceded lands through federal ownership. Could the tribe have asserted treaty rights to continued use of the property?
2. The National Historic Preservation Act is an interesting statute because it provides for property mechanisms such as deed restrictions to protect historic features. In this case, what "mitigation" would have been adequate for the tribes? Should Weyerhauser be allowed to clearcut most of the land, leaving just a trail swath in tact and protected by covenants?
II. OWNERSHIP IN A CONSTITUTIONAL FRAMEWORK
As Section I explained, the ownership of lands and resources involves a complex interaction between three sovereigns: the federal government, states and tribes. A basic understanding of the constitutional framework is necessary as a foundation to the more detailed discussion of ownership categories following in Section III.
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Post by denney on Aug 8, 2006 0:34:30 GMT -5
A. The Federal and State Role in the Constitution
The Supremacy Clause of the Constitution designates the federal government as the supreme sovereign in this country. u.s. const. art. VI, cl.2. But though supreme, the federal government has only limited powers, spelled out in the Constitution. States are the general sovereigns having the full array of police powers. All federal action must be tied to one of the federal enumerated powers, the most important of which in the natural resources context are: the Enclave Clause, the Property Clause, the Treaty Clause, and the Commerce Clause. Due to liberal interpretation of these powers, federal authority over land and natural resources in this country is extensive.
The Enclave Clause (also known as the Jurisdiction Clause) gives Congress power to establish federal "enclaves." u.s. const. art. 1, § 8, cl. 17. These are areas in which federal jurisdiction is nearly or completely exclusive of state jurisdiction. However, this clause requires that the federal government gain an express cession of jurisdiction from the state, accomplished by an act of the state's legislature. See Fort Leavenworth R. Co v. Lowe, 114 U.S. 525 (1885). About 5 percent of federal lands are federal "enclaves," used primarily for military bases and post offices.
The Property Clause is much broader, stating: "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting . . . Property belonging to the United States." u.s. const. art. IV, § 3, cl. 2. This clause has been interpreted in sweeping fashion to support federal management authority over its public lands. Consequently, the Enclave Clause, with its requirement for state cession of jurisdiction, has become less relevant to jurisdictional disputes on public lands. In Kleppe v. New Mexico, 426 U.S. 529 (1976), the Supreme Court defined the broad parameters surrounding the state and federal roles on federally owned land, clarifying the respective functions of state police power and federal Property Clause power. There, the state of New Mexico argued that the federal Wild Horses and Burros Act (WHBA), 16 U.S.C. §§ 1331, 1340, was beyond the scope of the federal Property Clause power and therefore unconstitutional. The New Mexico Livestock Board had rounded up and removed several wild burros from the federal public lands in violation of the federal WHBA, which prohibits the unauthorized removal of wild horses and burros from federal lands. 16 U.S.C. § 1338 (a)(1). The Court made clear that the federal power over public lands is expansive:
In passing the Wild Free-roaming Horses and Burros Act, *** Congress determined to preserve and protect the wild free-roaming horses and burros on the public lands of the United States. The question under the Property Clause is whether this determination can be sustained as a "needful" regulation "respecting" the public lands. *** [T]he [Property] Clause, in broad terms, gives Congress the power to determine what are "needful" rules "respecting" the public lands. "[The] power over the public land thus entrusted to Congress is without limitations." *** [T]he Property Clause gives Congress the power over the public lands "to control their occupancy and use, to protect them from trespass and injury and to prescribe the conditions upon which others may obtain rights in them...." *** [C]ongress exercises the powers both of a proprietor and of a legislature over the public domain. *** Although the Property Clause does not authorize "an exercise of a general control over public policy in a State," it does permit "an exercise of the complete power which Congress has over particular public property entrusted to it." In our view, the "complete power" that Congress has over public lands necessarily includes the power to regulate and protect the wildlife living there. ***
Appellees argue that if we approve the Wild Free-roaming Horses and Burros Act as a valid exercise of Congress' power under the Property Clause, then we have sanctioned an impermissible intrusion on the sovereignty, legislative authority, and police power of the State and have wrongly infringed upon the State's traditional trustee powers over wild animals. *** This argument is without merit. ***
Absent consent or cession a State undoubtedly retains jurisdiction over federal lands within its territory, but Congress equally surely retains the power to enact legislation respecting those lands pursuant to the Property Clause. And when Congress so acts, the federal legislation necessarily overrides conflicting state laws under the Supremacy Clause. *** "A different rule would place the public domain of the United States completely at the mercy of state legislation." ***
Courts have also interpreted the Property Clause to support federal regulation of non-federal lands where activities on those lands would "threaten the designated purpose of federal lands." Minnesota v. Block, 660 F.2d 1240, 1249 (8th Cir. 1981), cert denied 455 U.S. 1007 (1982) (upholding Boundary Waters Canoe Area Wilderness Act of 1978 which prohibited motor boats over state-owned streambeds within the wilderness area); See Eugene R. Gaetke, The Boundary Waters Canoe Area Wilderness Act of 1978: Regulating Non-Federal Property Under the Property Clause, 60 Or. L. Rev. 157 (1981).
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Post by denney on Aug 8, 2006 0:35:23 GMT -5
Unlike the Property Clause and the Enclave Clause, the Commerce Clause gives Congress vast authority not tied to federal ownership of land. That clause allows the federal government to regulate "Commerce . . . among the several States." u.s. const. art. I, § 8, cl. 3. Though liberal judicial interpretation has given broad effect to this clause, the authority is not all encompassing, as recent Supreme Court decisions indicate. In United States v. Lopez, 514 U.S. 549 (1995), the Court held that the Commerce Clause could not support a law that made it a crime to possess a firearm in a “school zone,” because the prohibited activity was not economic in nature, nor was it part of a larger economic regulatory scheme. The Court rejected the government’s argument that the regulated activity substantially affected interstate commerce because violence spreads economic costs, impairs education, and restricts movement into inner-cities. And in Solid Waste Agency v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), the Court hinted at a shrinking Commerce Clause in the area of environmental regulation. There, the U.S. Army Corps of Engineers required a consortium of municipalities to apply for a permit under section 404 of the Clean Water Act to fill isolated ponds in a gravel pit that provided habitat for migratory birds. The Supreme Court held that, although the site is migratory bird habitat, the Corps exceeded its jurisdiction under the Clean Water Act by requiring a permit, because the isolated waters did not meet the requisite statutory definition of “navigable waters.” Id. at 172-74. While the opinion rested on statutory grounds, it sent a warning shot over the Commerce Clause, stating that the Corp’s interpretation of its jurisdiction under the Clean Water Act “push[es] the limits of congressional authority” under the Commerce Clause. The opinion has not prevented lower courts from finding federal jurisdiction under the Endangered Species Act for activities on private lands. See e.g., Rancho Viejo v. Norton, 323 F.3d 1062, 1078-79 (D.C. Cir. 2003); Gibbs v. Babbitt, 214 F.3d 483, 492-93 (4th Cir. 2000); GDF Realty Investments, Ltd. v. Norton, 169 F. Supp.2d 648 (W.D. Tex. 2001); Nat'l. a--’n. of Home Builders v. Babbitt, 130 F.3d 1041, 1053-54 (D.C. Cir. 1997). For analysis, see Michael C. Blumm & George Kimbrell, Flies, Spiders, Toads, Wolves, and the Constitutionality of the Endangered Species Act's Take Provision, 34 Envtl. L. 309 (2004); Bradford C. Mank, Protecting Intrastate Threatened Species: Does the Endangered Species Act Encroach on Traditional State Authority and Exceed the Outer Limits of the Commerce Clause? 36 Georgia. L. Rev. 723 (2002). For further analysis of the Commerce Clause restriction on federal regulation, see Bradford C. Mank, The Murky Future of the Clean Water Act After SWANCC: Using a Hydrological Connection Approach to Saving the Clean Water Act, 30 Ecology L. Q. 811 (2003); William Funk, The Court, The Clean Water Act, and the Constitution: SWANCC and Beyond, 31 Envtl. L. Rep. 10741 (Envtl. L. Inst. July 2001).
The Treaty Clause provides that the President “shall have Power, by and with the Advice and Consent of the Senate, to make Treaties.” u.s. const. art. II, § 2, cl. 2. The Treaty Clause may become increasingly important if the Supreme Court continues to restrict federal Commerce Clause authority. The Treaty Clause supports broad national statutes that implement treaty obligations, such as the Endangered Species Act (which implements the International Convention on International Trade in Endangered Species, CITES) and the Migratory Bird Treaty Act. See Palila v. Hawaii Dept. of Land and Natural Resources, 639 F.2d 495 (9th Cir. 1981); Missouri v. Holland, 252 U.S. 416 (1920). For analysis, see Thomas Healy, Is Missouri v. Holland Still Good Law? Federalism and the Treaty Power, 98 Colum. L. Rev. 1726 (1998).
The states hold a broad reservoir of police powers under the 10th amendment, which reserves to states all powers not expressly granted to the federal government. Every state has a body of law dealing with general police power matters such as land use, wildlife, criminal law, property law, family law, corporate law, court jurisdiction, taxation, and the like. However, states must exercise these powers in conformity with Constitutional restrictions. A major restraint in the area of natural resources law emanates from the Commerce Clause, which has been interpreted to restrict states from impairing the flow of interstate commerce. The Court has struck state laws deemed to be to protectionist, making clear that a state cannot hoard its natural resources to the detriment of the national economic interest. When applied as a restriction against state activity, the Constitutional authority is referred to as the "dormant Commerce Clause" (“dormant” because the actual language of the Commerce Clause does not address state powers). In Hughes v. Oklahoma, 441 U.S. 322, 325-26 (1979), the Court described the clause in these terms:
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Post by denney on Aug 8, 2006 0:36:13 GMT -5
The few simple words of the Commerce Clause -- "The Congress shall have Power . . To regulate Commerce . . . among the several States . . ." -- reflected a central concern of the Framers that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, the new Union would have to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation. The Commerce Clause has accordingly been interpreted by this Court not only as an authorization for congressional action, but also, even in the absence of a conflicting federal statute, as a restriction on permissible state regulation.
The "dormant" Commerce Clause has been used to strike down statutes designed to keep resources, such as natural gas, within a state. In West v. Kansas Natural Gas Co, 221 U.S. 229, 255-56 (1911), the Court declared:
The statute of Oklahoma recognizes [gas] to be a subject of intrastate commerce, but seeks to prohibit it from being the subject of interstate commerce, and this is the purpose of its conservation . . . If the States have such power a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? . . . To what consequences does such power tend? If one State has it, all States have it; embargo may be retaliated by embargo, and commerce will be halted at state lines. ***
[We] have said that in matters of . . . interstate commerce there are no state lines. In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. t is constituted of the welfare of all of the States and that of each State is made the greater by a division of its resources, natural and created, with every other State, and those of every other State with it. This was the purpose . . . of the interstate commerce clause of the Constitution . . . .
Not uncommonly, federal and state sovereigns have different priorities in ecosystem or land management. State environmental or natural resource regulations, if enforced on federal lands, may create outcomes that conflict with federal management. Kleppe v. New Mexico, supra, made clear that where state law conflicts with the federal government's exercise of its enumerated powers, federal law trumps state law under the Supremacy Clause. Thus, where there is a clear federal mandate to manage federal lands or resources in a certain way, state law must recede under a doctrine known as federal preemption. Delineating the sphere of state power within the boundaries set by federal legislation gives rise to complex preemption questions. Congress could avoid these sovereign conflicts by expressly addressing state roles in land management, but Congress often remains silent in the public lands context. This is in contrast to the pollution control context, where federal statutes provide very clear roles for states by allowing states to create federally-approved programs to implement federal requirements. See e.g., Clean Air Act, 42 U.S.C.S. § 7410 (2003); Clean Water Act , 33 U.S.C.S. § 1344 (g) (2003); and Resource Conservation and Recovery Act, 42 U.S.C.S. § 6926 (2003).
The Court's opinion in California Coastal Comm’n. v. Granite Rock, 480 U.S. 572, 587-593 (1987), is one of the most comprehensive modern discussions of preemption in the natural resources context. There the Court concluded that a state's permit requirement under its Coastal Zone Management Act for operation of an unpatented mining claim on a national forest was not preempted by federal law that allowed the mining. The Court made a crucial distinction between state environmental regulation and land use regulation of a federally permitted activity on federal public lands:
[T]he question presented is merely whether the state can regulate uses rather than prohibit them. Put another way, the state is not seeking to determine basic uses of federal land: rather it is seeking to regulate a given mining use so that it is carried out in a more environmentally sensitive and resource-protective fashion. The line between environmental regulation and land use planning will not always be bright; for example, one may hypothesize a state environmental regulation so severe that a particular land use would become commercially impracticable. However, the core activity described by each phrase is undoubtedly different. Land use planning in essence chooses particular uses for the land; environmental regulation, at its core, does not mandate particular uses of the land but requires only that, however the land is used, damage to the environment is kept within prescribed limits. *** Federal land use statutes and regulations, while arguably expressing an intent to pre-empt state land use planning, distinguish environmental regulation from land use planning.
For analysis of the decision, see Eric Freyfogle, Granite Rock: Institutional Competence and the State Role in Federal Land Planning, 59 U. Colo. L. Rev. 475 (1988). For extensive commentary discussing the respective federal and state Constitutional roles in managing natural resources, see George C. Coggins, Wildlife and the Constitution: The Walls Come Tumbling Down, 55 Wash. L. Rev. 295 (1980).
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Post by denney on Aug 8, 2006 0:37:18 GMT -5
B. Tribes: The Third Sovereign in the Constitutional Framework The Constitution says little about the proper role of tribal sovereigns in this governmental framework, specifying only that Congress may regulate commerce with the Indian Tribes. u.s. const. art. 1, § 8, cl. 3. Despite this, courts have created a complex body of federal-Indian law. While this field of law easily consumes an entire law school course, at least the basic governing principles must be familiar to the general practitioner in natural resources law. The most widely used authoritative source in the field is Felix S. Cohen, Handbook of Federal Indian Law (4th ed, forthcoming 2005). A universal starting point of federal Indian law is the understanding that native nations are sovereigns -- that is, governments -- that pre-existed the United States. Until 1871 the federal government fashioned relationships with the native nations through treaties, a legal tool reserved for the international sphere. Early in the evolution of federal Indian law, the Supreme Court declared that tribes, though not "foreign nations," are "domestic dependant nations" within the United States. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). In the landmark case, Worchester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), the Court positioned tribes as the third sovereign within the Constitutional framework, making clear that, as pre-existing sovereigns, tribes were not subordinate to state law. The Court also established the enduring principle that Indian relations are solely a matter of federal law, which preempts conflicting state law. This principle is essential to tribal sovereignty, as states notoriously challenge tribal governmental powers. In Worchester, the Court struck down laws enacted by the Georgia legislature which (in the Court's words) were intended to "seize on the whole Cherokee country, parcel it out among the neighboring counties of the state, extend [Georgia] code over the whole country, abolish [Cherokee] institutions and its laws, and annihilate its political existence." Id. at 542. The passage below remains the bedrock of federal Indian law today. The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed: and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term 'nation,' so generally applied to them, means ‘a people distinct from others’. The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words 'treaty' and 'nation' are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.*** The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force [except with] conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States. *** [T]he acts of Georgia are repugnant to the constitution, laws, and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union. Id. at 519-520. Despite the protection from state intrusions, other foundational cases make clear that tribal sovereignty is subject to an overriding federal "plenary power," a doctrine used by courts to justify express Congressional abrogations of native sovereignty. United States v. Kagama, 118 U.S. 375 (1886). Federal plenary power over tribes is not expressly supported by the Constitution, which gives power only to "regulate Commerce . . . with the Indian Tribes." U.s. const., art. I, § 8, cl. 3. For a searching inquiry into the plenary power, see Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195 (1984); Robert Williams, The Algebra of Federal Indian Law, 1986 Wis. L. Rev. 219 (1986) (tracing plenary power to the assertion of Christian supremacy in medieval times). Despite the federal plenary power, tribes may exert all powers of sovereignty that have not been extinguished by Congress and that are consistent with their domestic dependant status. As the Court put it in United States v. Wheeler, 435 U.S. 313, 323 (1978): Indian tribes are, of course, no longer "possessed of the full attributes of sovereignty." Their incorporation within the territory of the United States, and their acceptance of its protection, necessarily divested them of some aspects of the sovereignty which they had previously exercised. By specific treaty provision they yielded up other sovereign powers; by statute, in the exercise of its plenary control, Congress has removed still others. But our cases recognize that the Indian tribes have not given up their full sovereignty. We have recently said that: "Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory . . . . [They] are a good deal more than 'private, voluntary organizations.' " The sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance. But until Congress acts, the tribes retain their existing sovereign powers. In sum, Indian tribes still possess those aspects of sovereignty not withdrawn by treaty or statute, or by implication as a necessary result of their dependent status. As a general matter, tribes exercise their retained sovereignty to manage their reservation lands, engage in economic enterprise, regulate their members' activities on and off the reservations, exercise territorial jurisdiction over their lands, and tax activities on their reservation lands. Felix Cohen, Handbook of Federal Indian Law (4th ed. forthcoming 2005). The Supreme Court has made clear, though, that certain acts of sovereignty would be inconsistent with the tribes' "domestic dependant nation" status -- actions such as entering into direct commercial or governmental relations with foreign nations, alienating their land without federal approval, and exercising criminal jurisdiction over non-Indians. Worchester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 588, 5 L. Ed. 681 (1823); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). Recent cases have increasingly limited the ability of tribes to regulate non-Indian activity on non-Indian owned lands within a reservation. In Montana v. United States, 450 U.S. 544 (1981), the Court held that the Crow Tribe could not regulate non-Indian hunting and fishing on non-Indian lands within the reservation, because such regulation was inconsistent with the tribes' domestic dependent status. But the Court created an exception to allow regulation where 1) the non-Indians had entered into consensual relations with the tribe through commercial dealing, leases, and like arrangements; or 2) the non-Indian conduct threatened the "political integrity, the economic security, or the health or welfare of the tribe." Id. at 565-566. Suffice it to say, any analysis of natural resource jurisdiction in Indian Country brings forth a quagmire of confusing doctrine. Treaties are a bedrock source of law because they represent the early understandings between the federal government and individual tribes. Treaties with tribes were executed by the federal government pursuant to the treaty clause of the Constitution. u.s. const., art. II § 2, cl. 2. As such, they take a unique position in Constitutional law, and are considered the "supreme law of the land." Worcester v. Georgia, 31 U.S. 515 (1832). Many treaties either expressly or implicitly contain promises guaranteeing continued enjoyment of natural resources such as fish, wildlife, and water. See Washington v. Washington State Commercial Passenger Fishing Vessel a--’n., 443 U.S. 658 (1979) (construing clause securing the right to take fish in ceded lands); Winters v. United States, 207 U.S. 564, 576-77 (1908)(recognizing implied water rights). Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600-1800 (Oxford Univ. Press 1997). In the minds of the Indian negotiators, treaties were supposed to be enduring documents, and their promises continue to be enforced by courts today even under difficult circumstances. As such, treaties provide the basis for some of the most important native land and natural resource rights. Because treaty negotiations were coercive and one-sided, courts have developed rules of construction to favor the Indian interests. As the Supreme Court reiterated in construing a treaty with the Chippewas, "Indian treaties are to be interpreted liberally in favor of the Indians, [and] ambiguities are to be resolved in their favor." Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 200 (1999); see also 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, 617 (1975). Justice Black once noted that "Great Nations, like Great men, should keep their word." Federal Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960). Despite the moral force of that simple statement, the Supreme Court has construed the federal government's plenary power to include the power to abrogate treaties. The current treaty abrogation rule was iterated by the Supreme Court in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 202-203 (1999): Congress may abrogate Indian treaty rights, but it must clearly express its intent to do so. There must be “clear evidence that Congress actually considered the conflict between its intended action on the one hand and Indian treaty rights on the other, and chose to resolve that conflict by abrogating the treaty.” United States v. Dion, 476 U.S. 734, 740 (1986). See also, South Dakota v. Bourland, 508 U.S. 679 (1993). While express statutory language is not absolutely necessary, the Court has emphasized that " bsent explicit statutory language, we have been extremely reluctant to find congressional abrogation of treaty rights. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. at 690. It is important to bear in mind that only Congress may abrogate treaties. Federal agencies lack such authority and must conform their actions to treaty obligations. Where Congress abrogates treaty property rights, compensation is due under the Fifth Amendment of the Constitution. United States v. Sioux Nation of Indians, 448 U.S. 371 (1980). For analysis of treaty abrogation, see David Getches, et. al., Cases and Materials on Federal Indian Law, 313-328 (4th ed., West 1998).
Despite the "plenary" federal authority over tribes, courts have also imposed a general obligation on the federal government to protect tribal lands, resources, and native interests. Since the beginning of federal-Indian relations, courts have emphasized that the federal government stands in a "trust" relationship with tribes. While this is often characterized as a "guardian-ward" relationship, it is perhaps more accurately thought of as a property and governmental relationship between sovereigns. The trust obligation is a cornerstone of Indian law, and has increasing importance in the area of natural resources law as tribal lands and resources face mounting threats from the majority society.
Mary Christina Wood, Indian Land and the Promise of Native Sovereignty: The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471 (1994).
The "trust responsibility" has been recognized by courts, Congress, and the executive branch throughout the span of federal Indian law. The seeds of the trusteeship are traceable to the first cessions of Indian land to the federal government. Nearly all native peoples in this country, including those in Alaska and Hawaii, share in common a loss of their land to the impulses of an immigrant majority population with a colonialist, capitalist persuasion. The vast cessions of land by the native peoples were premised on federal promises that the native peoples could continue their way of life on homelands of smaller size, free from the intrusions of the majority society. [T]he modern form of the trust obligation is the federal government's duty to protect this separatism by protecting tribal lands, resources, and the native way of life. ***
The trusteeship emerging from [the] earliest period of federal-Indian relations might be described as a "sovereign trusteeship," because it embodied a strong presumption of native sovereignty and was premised on a model of federal-tribal relations organized around a paradigm of native separatism. ***Understandably, the Court's role in enforcing a sovereign trusteeship became vitally important. The judiciary responded by developing a doctrine of federal common law known as the trust doctrine. The doctrine is most often expressed as a fiduciary obligation on the part of the federal government to protect the interests of tribes. Because it is a creature of common law, courts have some latitude in defining its reach and application. The Supreme Court has recognized that tribes have a right of action deriving from federal common law to enforce their property interests, and courts frequently have invoked the doctrine to protect such interests against federal action. ***
In the earlier periods, federal protection was needed to secure retained native lands against intruding white settlers; today, federal protection is increasingly needed to shield Indian Country from environmental threats both to the tribal land base and to shared resources such as water and wildlife. ***
Federal-Indian relations are increasingly becoming the province of executive branch agencies. The burgeoning administrative state presents a formidable legal infrastructure within which, as a practical matter, much federal-tribal interaction takes place. While the BIA has always dominated tribal life, now other agencies operate programs or implement regulations which have a tremendous effect on the environment so integral to native separatism. Unfortunately, many of these agencies routinely carry out statutory mandates without due regard to the special obligations owed to native nations.
In this new context, the trust doctrine is an important legal tool to protect native rights against adverse agency action. Statutory standards developed to serve the interests of a majority society often do not address native needs. Nor do the treaties, which are binding on agencies, address many modern issues that arise with respect to environmental conflicts; furthermore, not all tribes have treaties. The trust doctrine transcends specific treaty promises and embodies a clear duty to protect the native land base. . . . In short, the doctrine provides a judicial avenue for developing standards more protective of native separatism.
The trust doctrine has a different application with respect to Congress and federal agencies. While the Court has declared that statutes must be "tied rationally to the fulfillment of Congress' unique obligation toward the Indians," Morton v. Mancari, 417 U.S. 535, 555 (1974), the trust doctrine has never been used to strike down a federal statute. But the trust standard towards executive agencies is far more rigorous, judged by the "most exacting fiduciary standards." Pyramid Lake Paiute Tribe of Indians v. Morton, 354 F. Supp. 252, 256 (D. C. 1972). Enforcement of the trust obligation against agencies occurs in two ways (and in two separate forums). Suits for injunctive relief (to prevent or gain a remedy for trust violations) are brought under the Administrative Procedure Act in federal district court. 5 U.S.C. § 702. Suits for monetary damages for trust violations are brought under the Indian Tucker Act in the United States Court of Federal Claims. 28 U.S.C. § 1505, See United States v. Mitchell (Mitchell I); 445 U.S. 535 (1980); United States v. Mitchell (Mitchell II), 463 U.S. 206 (1983); United States v. White Mountain Apache Tribe, 123 S. Ct. 1126 (2003); United States v. Navajo Nation, 123 S.Ct. 1079 (2003). For a analysis of litigation enforcing the trust obligation against federal agencies, see Mary Christina Wood,
The Indian Trust Responsibility, Protecting Tribal Lands and Resources Though Claims of Injunctive Relief Against Federal Agencies, 39 Tulsa Law Review 101 (2004). Chapter 7 deals with treaty rights and the trust doctrine in more detail.
The Constitutional Check Against Sovereign Interference With Private Property
Another parameter in the Constitutional framework surrounding property ownership concerns the protection of individual private property against governmental infringement. The 5th amendment of the Constitution, which applies directly to the federal government and by extension to the states through the 14th amendment, declares: "Nor shall private property be taken for public use, without just compensation." u.s. const. am. V. Courts have uniformly construed the clause to allow governments the power of "imminent domain" - the right to condemn private property. But the clause also imposes an important limitation on such action. Governments must compensate landowners at fair market value whenever they take private property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992). The meaning of the word "taken" within the clause has stirred one of the most contentious debates in the modern judicial era and fuels contemporary property rights disputes centered around the concept of "regulatory takings." Private property ownership is subject to regulation by the states and federal government. In some cases regulation may severely decrease property value or prevent the landowner's preferred use of property. Increasingly, landowners allege a "regulatory taking" -- arguing that their property has effectively been "taken" because they are deprived of a certain amount of value or type of use.
Early takings jurisprudence had required compensation only when a physical taking of private property occurred. See id. at 812. Then, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), Justice Holmes led the Court out onto a slippery slope by holding that there could be a taking if a regulation "goes too far." The progeny of takings cases since has demonstrated, if nothing else, the difficulty of creating a workable standard for regulatory takings. The Supreme Court has issued some weighty regulatory takings opinions in the last decade, but all have added considerable confusion to the area, leaving many to conclude that the doctrine is hopelessly muddled.
Much of the confusion springs from an unclear and changing notion of what is encompassed in a property right. If a property right does not exist, there can be no taking. This truism invokes the intersection between public and private property rights. Few would opine that property ownership gives a landowner full and unfettered rights to do whatever she wants to on the property. As the Court has always held, all private property is subject to reasonable regulation to protect against public harm. See Palazzalo v. Rhode Island, 533 U.S. 606, 627 (2001) (“the right to improve property, of course, is subject to the reasonable exercise of state authority.”). Preventing the owner from doing something she never had the right to do in the first place is not a taking. This conclusion, however, takes the lawyer only so far, because it begs the question of what regulation is reasonable, a question that continues to befuddle the Supreme Court. In addition to the regulatory burden that all property must accept, some individual title may be encumbered by pre-existing "sovereign servitudes" that are, by nature, property rights held by government for the public. Examples are treaty rights, the federal navigation servitude, and public trust easements. When these sovereign servitudes underlie individual title, they limit the landowner's ability to make any use of the property that interferes with such public rights. Regulation to prevent an interfering use is inherently not a taking, because the property owner never had the right to put property to the interfering use in the first place. As the Supreme Court noted in upholding Indian treaty rights that provided access to Indian fishers across private property:
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. nd the right was intended to be continuing against the United States and its grantees as well as against the State and its grantees.
United States v. Winans, 198 U.S. 371, 381-82 (1905).
The judicial conception of sovereign servitudes is an ever-changing one, in some cases growing to meet emerging public needs. As courts expand their notion of sovereign servitudes, the set of takings claims available to private property owners correspondingly retracts. The adjustment between sovereign servitudes and individual property rights is a critical theme that emerges in the next three chapters dealing with federal, tribal, and state property rights. Chapter 8 devotes focused attention to individual property rights and the takings jurisprudence.
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Post by denney on Aug 8, 2006 0:38:15 GMT -5
In Practice:
Finding sovereign servitudes in the chain of title
Where sovereign property rights such as treaty rights, the federal navigational servitude, and public trust easements encumber a particular parcel, such rights form a "cloud" on the title held by individuals. But how does a practitioner determine whether there are underlying sovereign rights on a particular parcel? Unfortunately, there is no streamlined way. When title transfers take place between individuals, the exchange of property rights is “recorded,” usually in the County courthouse where the property is located. Searches through title records provide a reliable method for determining individually held title encumbrances, such as easements, future interests, covenants, and the like. But sovereign property interests are typically unrecorded, expressed only through caselaw, treaties, statutes, or executive orders. Therefore, the natural resource practitioner is ill-advised to rely fully on title searches to portray a full picture of ownership. Moreover, title companies, which insure an individual owner's title to property, typically exclude from coverage any encumbrance on title arising from sovereign property rights. So if there are underlying sovereign rights that a purchaser was unaware of at the time of purchase, it is unlikely that the purchaser could later seek recourse for the loss in property value from the title insurance company. Below is some standard exclusion language found in title insurance policies:
Easements, liens or encumbrances, or claims thereof, which are not shown by the public records. 2. Right of use, control or regulation by the United States of America in the exercise of powers over navigation; any prohibition or limitation on the use, occupancy or improvement of the land resulting from the rights of the public or riparian owners to use any waters which may cover the land or to any portion of the land which is now or may formerly have been covered by water.
Any adverse claim based on the assertion of such rights and easements for navigation and fishery that may exist over land lying beneath waterways. Question: Assume you are a real property lawyer. Under what circumstances should you investigate the possibility of sovereign property rights? Should you explore the possibility with every parcel, even ones in the middle of a city or farm area? What types of parcels carry red flags? River frontage parcels? Ocean beach parcels? Wetland parcels? Others?
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Post by denney on Aug 8, 2006 0:41:36 GMT -5
Part TWO the answer
OK- here is a answer to this what I just Posted -
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Post by denney on Aug 8, 2006 0:44:49 GMT -5
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.
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Post by denney on Aug 8, 2006 0:45:52 GMT -5
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.
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Post by denney on Aug 8, 2006 0:47:15 GMT -5
------------------------------------------------------------------------------------------------------------------------ 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) ------------------------------------------------------------------------------------------------------------------------
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Post by denney on Aug 8, 2006 0:47:54 GMT -5
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. 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
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Post by denney on Aug 8, 2006 0:48:37 GMT -5
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 0:49:16 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).
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Post by denney on Aug 8, 2006 0:50:01 GMT -5
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. 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 0:50:38 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&actionFrom 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
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Post by denney on Aug 8, 2006 0:52:11 GMT -5
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.htmlJOHNSON 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
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Post by denney on Aug 8, 2006 0:52:37 GMT -5
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
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Post by denney on Aug 8, 2006 0:54:27 GMT -5
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 0:55:26 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
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