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affected tribe is using and occupying the lands involved at

the time of the legislation, much less where the tribes have not been in possession of the land for close to two centuries does not give rise to any claim that such legislation constitutes a

sa taking of property that is compensable under the Fifth

The definitive statement that aboriginal title is

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

pursuant to a 1947 Joint Resolution of the Congress that authorized the sale of such timber by the Secretary. After determining that the Tee-Hit-Tons held aboriginal title

1/

rather than recognized title to the lands in question,
the court addressed the nature of aboriginal title and
whether such title involved property rights protected by the

Constitution:

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

-

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

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

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

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

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

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

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and copying the Jandr

affected.
United States has not consented to be sued for

the taking of original Indian title, but be-
case Indian occupation of land without govern-
ment recognition of ownership creates no rights
against taking or extinction by the United States
protected by the Fifth Amendment or any other
principle of law.

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

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

a line of judicial precedent stretching back to 1823 making clear that aboriginal title does not involve a constitutionally ३/ compensable interest in land,

and has been followed in

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

17 Id. at 284-85 (emphasis supplied).

2/

3/

Id. at 291.

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

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1377 (D.D.C. 1973) (". . . action by Congress to effect a transfer of the lands could not be a Fifth Amendment taking regardless of whether such action is prospective or retroactive").

In the recent decision in Osceola v. Kuykendall, No. 76-492 (D.D.C. March 11, 1977), a three-judge district court has reaffirmed that, with respect to aboriginal title,

Tee-Hit-Ton makes clear that:

"any right which Indians of today have in
such former Indian territory is a mere right
of possession and occupancy, subject at any
time to taking or extinction by Congress
and . . . recovery for past wrongs to the
Indians who were deprived of their lands is
a matter of legislative grace rather than
legal liability on the part of the United
States."1/

There have been numerous court decisions in which
Indian tribes have obtained recovery from the United States
for the extinguishment of their aboriginal titles, but
all of these cases have involved claims that were filed
under special jurisdictional statutes, such as the Indian
Claims Commission Act, that created by specific statutory
enactment a right of action for such a claim that otherwise
2/
would not have existed.

2/

No. 76-492 at 7 (unreported opinion).

The Indian Claims Commission Act, for example, created right of action against the United States "for claims arising from the taking by the United Staes, whether as a

(footnote continued)

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The only decision that has ever cast doubt on whether

extinguishment of aboriginal title is compensable under the Fifth Amendment is United States v. Alcea Band of Tillamooks (Alcea I), 329 U.S. 40 (1946). While language in that decision was susceptible of the interpretation that the Court was holding that an extinguishment of aboriginal title was constitutionally compensable, the Court's subsequent decision in United States v. Alcea Band of Tillamooks (Alcea II), 341 U.S.48 (1951), in which the Court determined that no interest should be paid as part of the compensation awarded, specifically stated that the recovery awarded in Alcea I was not grounded on a taking under the Fifth Amendment, but was based on the statutory direction to pay for the taking of aboriginal title contained in a special jurisdictional act passed by the Congress for the benefit of the Tillamooks. This interpretation of Alcea I was specifically reaffirmed in Tee-Hit-Ton, supra, at

(footnote continued)

result of a treaty of cession or otherwise, of lands owned or occupied by the claimant without the payment for such lands of compensation agreed to by the claimant" and for "claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity." 25 U.S.C. 570a(4), (5) (1970). Numerous tribes filed such claims for the extinguishment of their aboriginal titles with the Commission and received recoveries based on the value of their lands at the time the tribes lost or transferred their aboriginal title. Such awards did not bear interest.

See,

Fort Berthold Reservation v. United States, 390 F.2d 586 (ct. Cl. 1968).