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Post by denney on Aug 8, 2006 0:56:30 GMT -5
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 0:57:14 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: 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 0:57:57 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.
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Post by denney on Aug 8, 2006 0:58:24 GMT -5
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 0:59:09 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. 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
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Post by denney on Aug 8, 2006 0:59:53 GMT -5
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.*** 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:
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Post by denney on Aug 8, 2006 1:00:22 GMT -5
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? 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
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Post by denney on Aug 8, 2006 1:01:09 GMT -5
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.gifIn 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. 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
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Post by denney on Aug 8, 2006 1:01:52 GMT -5
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).
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. 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. 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. 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. ***
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
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Post by denney on Aug 8, 2006 1:02:33 GMT -5
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 . . . . 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. 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). 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: 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
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Post by denney on Aug 8, 2006 1:03:49 GMT -5
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). 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.***
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Post by denney on Aug 8, 2006 1:04:24 GMT -5
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).
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Post by denney on Aug 8, 2006 1:04:53 GMT -5
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. ***
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Post by denney on Aug 8, 2006 1:05:19 GMT -5
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,
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Post by denney on Aug 8, 2006 1:05:46 GMT -5
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.
C. 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:
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Post by denney on Aug 8, 2006 1:06:09 GMT -5
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. 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:
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Post by denney on Aug 8, 2006 1:06:38 GMT -5
1. 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.
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Post by denney on Aug 8, 2006 1:07:02 GMT -5
3. 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 1:13:29 GMT -5
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Post by denney on Aug 8, 2006 1:22:03 GMT -5
I was thinking at one point in time My buffalo was running for the Gold, Now I dont know after reading all this. My buffalo mite be running away from it. humm need to reread this several times.
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