TBL CHP 12

INDIAN LANDS STUDY NOTES

A. INTRODUCTION

  • Indian Lands Definition:

    • Refers to lands that are held by Indian tribes or individuals under restrictions.
    • Distinction: Not all property owned by Indians is considered "Indian land"; for example, real property like a residence in Chicago is not interpreted as "Indian land".
    • Ownership is primarily about the beneficial ownership where title holders have benefits that are regulated by unique statutes.

  • Two Key Points:

    1. Definition of Indian Lands:
    • The term "Indian lands" is specific to the legal framework of land held in trust or treated as reservation land.
    • Non-Indian Land: Any Indian's property on the public market with fee title that is freely disposable is not considered "Indian land".
    1. Ownership Dynamics:
    • Ownership of Indian lands is distinct from the notion of reservations and constitutes a separate topic from the concept of Indian country.
    • Jurisdictional significance discussed under Chapter 7.

B. ABORIGINAL TITLE

  • Historical Context:

    • Originally, under the Trade and Intercourse Act of 1790, Congress determined that tribes could not acquire lands by treaty unless it adhered to constitutional provisions.
    • Chief Justice Marshall articulated the legal nature of Indian interests in land in *Johnson v. McIntosh, 21 U.S. 543 (1823).
    • Court Ruling:
      • Recognized the sovereignty of Indians over their lands but defined that they had a right of occupancy rather than a full ownership equivalent to the title recognized by European states.
      • Found that tribes could not convey land legally to individuals; the U.S. could extinguish the Indian right of occupancy only through purchase or conquest.

  • Legal Implications of Aboriginal Title:

    • Aboriginal title, also known as "original Indian title," denotes the legal rights held by tribes over lands they historically occupied.
    • The right of occupancy can only be extinguished by federal government action.

  • Supreme Court Precedent:

    • In Cherokee Cases, Marshall adjusted the emphasis toward purchase rather than conquest as the method for extinguishing Indian title.
    • Indian tribes must have had consistent use of land to maintain their right of occupancy.

  • Post-Constitutional Context:

    • Following the adoption of the Constitution, only the federal government could extinguish aboriginal title, as seen in Oneida Indian Nation v. County of Oneida*, 414 U.S. 661 (1974).
    • This gives the federal government the monopolistic right to manage tribal land claims and occupancy.

  • Cases Illustrating Aboriginal Title:

    1. Pueblo of Jemez v. United States, 63 F.4th 881 (10th Cir.2023) - Tribal interest recognized as a property right.
    2. Seneca Nation v. New York (382 F.3d 245, 2004) - Ceding land under treaty extinguished aboriginal title.
    3. Military action that removed tribes and enabled federal participation in the land sufficed as taking.

C. THE EASTERN LAND CLAIMS

  • Emergence of Claims:

    • Eastern tribes, such as the Oneida Indian Nation and Passamaquoddy Tribe, have historically asserted claims based on aboriginal title without federal treaty acknowledgment.
    • The cases involved claims of land ceded without federal government consent violating the Trade and Intercourse Act of 1790.

  • Significant Cases:

    1. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974): The Supreme Court ruled the Oneidas retained a federal claim for their land.
    2. City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005): Declared that issues of long-standing claims were impeded by laches due to a lack of assertion over time.
    3. Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir.1975): Land claims based on aboriginal title supported by a trust relationship with federal government.

  • Legislative Solutions:

    • Resolution through acts like the Maine Indian Claims Settlement Act and others which extinguished aboriginal claims while providing monetary compensation for land loss.

D. RECOGNIZED TITLE

  • Definition of Recognized Title:

    • Title that is acknowledged by federal treaty or statute as legitimate.
    • Recognized title provides advantages such as compensation rights under the Fifth Amendment for governmental takings.

  • Judicial Precedents:

    • Cases like United States v. Creek Nation, 295 U.S. 103 (1935) established that recognized title provides compensatory rights for government takings.
    • Executive orders do not establish recognized title and land designated by executive loft without legislated approval can be taken without compensation.

E. INDIAN CLAIMS

  • Indian Claims Commission Act of 1946:

    • Established to hear tribal claims against the federal government, particularly violations of treaties.
    • Recognizes the right of recovery for numerous injustices regarding land dispossession.

  • Claims Definition:

    • Claims were recognized under various provisions including recent claims due to fraud, duress, or taking of land without compensation.
    • Established framework under which tribes could seek redress.

F. INDIAN LANDHOLDING TODAY

  • Current Structures of Indian Land Tenure:

    • Most land is held in trust, aimed at protecting Indian property rights by ensuring beneficial interest lies within the tribe or individual members.
    • Variations exist based on fee title ownership and restrictions on alienation.

  • Leasing:

    • Congress mandates that leases of tribal land require Secretary of Interior approval.
    • Length of leases can vary, usually up to 25 years, but some reservations allow 99-year leases.

  • Challenges:

    • The allotment system leads to fractional ownership issues where numerous heirs can complicate ownership management.
    • In many cases, old allotments are lost to non-Indians, creating checkerboard land patterns.

G. LEASING OF INDIAN LANDS

  • Regulations on Leasing:

    • All leasing on Indian lands must be approved by the Secretary of the Interior.
    • Leases can be for a variety of purposes (agriculture, mining, etc.) with stipulations regarding management and profit distribution.

  • Legal Implications of Management:

    • The Bureau of Indian Affairs (BIA) holds significant supervisory responsibility which may sometimes incur legal liability if fiduciary duties are not met as seen in U.S. v. Mitchell cases.
    • Recent high-profile cases demonstrate the ongoing disputes related to trust responsibilities and lease management.