2 constitute a taking of property rights protected by the fifth amendment to the Constitution. I. Background In recent years several tribes or purported tribes in the states of New York and South Carolina have instituted litigation against the two states, numerous local governments and communities, and tens of thousands of landowners seeking the repossession of millions of acres of land and the recovery of billions of dollars in trespass damages. The basic claim involved in these cases is that the original transfers of these lands by Indian tribes to non-Indians in the eighteenth and nineteenth centuries were invalid because such transfers were not approved by Congress in accordance with the Nonintercourse Act provision of the Trade and Intercourse Act of 1790, as reenacted and amended. 2/ It is the contention of the Indian tribal claimants that despite 2/ The Nonintercourse Act, which was originally enacted in 1790 and subsequently reenacted several times -- most recently in 1834 is presently codified at 25 U.S.C. § 177 (1976). The Act provides that no conveyance of land by an Indian tribe shall be valid "unless the same be made by treaty or convention entered into pursuant to the Constitution." In an act passed in 1871 (now codified at 25 U.S.C. § 71 (1976)) Congress declared that after March 3, 1871, it would no longer deal with Indian tribes by treaty. Thus, since 1871 congressional action by legislation, rather than by treaty, is the appropriate means of approving transfers of land by Indian tribes. See In re Neff, 197 U.S. 488 (1905). · 3 the fact that non-Indians have occupied and developed the land in question in good faith for many decades (in some instances for almost two centuries), and even though the federal government has taken numerous actions over the years demonstrating the government's recognition that the nonIndian occupants are the rightful owners of the land, the failure of Congress to enact legislation specifically approving the transfers renders them totally invalid. The pendency of these unprecedented claims has cast a cloud on the titles to substantial areas of land in New York and South Carolina, and has caused severe economic hardship in the affected communities. A judicial determination that the original transfers were invalid, and any court order that the lands in question must be returned to Indian tribes that have not occupied those lands for well over a century or that current landowners must pay trespass damages for their good faith occupancy or development of the lands, would be catastrophic in their economic, social, and political effect on the states and communities involved. The Ancient Indian Land Claims Settlement Act of 1982 represents a good faith effort to resolve these claims in a fair and equitable manner that would protect the many thousands of innocent communities and landowners that are currently being held hostage by these claims. Basically, the legislation would provide the requisite congressional approval of these ancient transfers (to the extent that actions of the federal government down through the years have not already supplied such approval) and provide affected Indian tribes with alternative mechanisms (including a cause of action against the United States in the Court of Claims) designed to ensure that the tribes will receive fair compensation for any lands transferred by them in centuries past. Before addressing the specific constitutional infirmities that are asserted to exist with respect to the legislation, a few comments are in order regarding the statement made in the Indian Counsel Memorandum that the claims to title being asserted in the litigation in the two states involve "recognized" title that is protected by the fifth amendment to the Constitution, rather than "aboriginal" title, which is not subject to such protection. As will be discussed below, congressional approval of prior Indian land transfers is constitutionally permissible regardless of whether the claims involve recognized or aboriginal title; nevertheless, because the Indian Counsel Memorandum discusses at length the limitations on Congress' power with respect to recognized title claims, a brief examination of whether the claims in South Carolina and New York involve recognized title may be helpful in assessing the validity of the constitutional contentions advanced in that Memorandum. - 5 A. The differences between aboriginal and recog- The concept of "aboriginal title" was initially developed by the European nations that colonized America, and was subsequently embraced by the United States, as a means of distinguishing between, on the one hand, the rights of use and occupancy of the aboriginal peoples that inhabited America and, on the other hand, the underlying sovereignty or fee interest in the lands that were acquired by these European nations and that, following Independence, passed to the individual colonies that established the United States or to the United States itself. To establish a claim of aboriginal title, an Indian tribe must demonstrate that it has actually, exclusively, and continuously used and occupied the land in question "for a long time." Sac and Fox Tribes v. United States, 315 F.2d 896, 903 (Ct. Cl.), cert. denied, 375 U.S. 921 (1963). While aboriginal title establishes a right of occupancy in an Indian tribe, the ultimate fee (or ownership) interest in the land is retained by the sovereign. Outside the original thirteen colonies, the United States owned the ultimate fee to lands occupied by Indian tribes and could extinguish an Indian tribe's right of occupancy by any one of several means including conquest, purchase or legislative action intended to extinguish such rights. See Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 667 (1974); Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-81 (1955); United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941). Within the territory of the original thirteen colonies, after the adoption of the Constitution in 1789 the ultimate fee interest in lands occupied by Indian tribes continued to reside with the states wherein the lands were located, rather than with the federal government. 3/ The right of the states that comprised the original thirteen colonies to acquire the aboriginal title of a tribe to land located within their borders was known as the "right of preemption." Supreme Court decisions have recognized this right of preemption in the original thirteen states. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670 (1974), Massachusetts v. New York, 271 U.S. 65, 85-86 (1926), Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 584-86 (1823). Case law is clear that aboriginal title is not a property right but amounts to a itself without any legally enforceable _3/ Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810). 4/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955). |