property from land to money, there Id. at 409 (Emphasis added). 15/ Conversely, Id. [C]ongress' paramount power over extend so far as to enable the at 408, quoting Shoshone Tribe v. United States, 299 U.S. 476, 497 (1937). It follows, then, that unless the instant bills provide for payment of "full value" for extinguished tribal property, they constitute an exercise of congressional power of eminent domain and a taking under the Fifth Amendment, rather than an exercise of guardianship power over Indian property. 15/ Significantly, the Court went on to note that . "whether Congress has made a good faith effort to give the Indians the full value of their lands " is subject to factual inquiry which "cannot be avoided by the government's simple assertion that it acted in good faith in its dealings with the Indians." Id. at 417. Thus, recitation number (3) in the preamble to the present bills which proclaims that one of the purposes of the bills is to "provide Indian . . . tribes affected by the Act with a means of obtaining fair and equitable compensation for their claims" would in no way preclude a judicial inquiry into the actual adequacy of the compensation. Clearly, the bills do not provide for payment of full value. Although the property taken is a right to present possession of the land based on extant title, compensation is computed based on ancient land values that is, values at the time of the initial unlawful - Furthermore, the land transfers. On its face, then, the proposed compensation bears no relation to the value of the property taken. proposed compensation would be, in many instances, no more than the United States is already obligated to pay the tribe for its breach of trust with respect to the same land under the Indian Claims Commission Act, 25 U.S.c. § 70 (1970). See United States v. Oneida of New York, 477 F.2d 939 (Ct.Cl. 1973), holding the United States liable for breach of fiduciary duty in failing to protect the Oneidas in their possession of the same lands that are the subject of a land claim suit in Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977). Consequently, those tribes which have prosecuted claims against the United States for breach of fiduciary duty would receive no additional compensation for claims extinguished by the bills. Such "compensation" is inadequate as a matter of law. Sioux Nation of Indians v. United States, 701 F.2d 1157, 1166 (Ct.Cl. 1979), aff'd 448 U.S. 371. Thus, the tribes affected by the bills will not receive compensation even remotely approaching the full value of their claims. According to the Sioux Nation Court, it must therefore be concluded that Congress, in enacting the bills, would be exercising its power of eminent domain rather than guardianship over Indian lands. The bare language of the bills themselves further support this conclusion. Section eight provides that if either the retroactive ratification provision (57) or the retroactive compensation provision (56(c)(1)) is held invalid, the entire act is inapplicable to the tribe that prosecuted the challenge. In other words, the bill would extinguish the Indian claims unless a court determines that Congress may not lawfully provide compensation based on antiquated land values; in that case, the extinguishment will not take effect and the particular tribe can pursue its claim against third parties. The only apparent purpose served by such a scheme is protection of the federal treasury a factor that is relevant only to Congress' power of eminent domain, and is completely alien to the "fulfillment of Congress' unique obligation toward the Indians," Delaware Tribal Business Comm. v. Weeks, above, 430 U.S. at 85. - As an exercise of Congress' power of eminent domain, then, the bills must provide for payment of "just compensation" to comply with the taking clause of the Fifth Amendment. U.S. CONST., Amend. V. For two reasons, the bills fall far short of providing 16/ full compensation for the extinguished tribal claims. 16/ The cases cited in this section which discuss the requirement that just compensation be paid for a taking of Indian land involve recognized title. The Supreme Court has held that timber taken from tribal lands held under aboriginal title is not compensable under the Fifth Amendment. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955). Whether the Tee-Hit-Ton rule would be extended continued on page 28 17/ See Fort First, the compensation authorized by the bills for extinguishment of the tribes' title claims is determined by 'ancient' land values, i.e. values at the time of the original transaction, rather than present values. Yet the property taken by the bills is a present right to possession based on extant aboriginal or recognized title. On its face, then, the proposed compensation has no relation to the value of the property taken. Berthold Reservation v. United States, 390 F.2d 686, 695, cited with approval in United States v. Sioux Nation, 448 U.S. at 409, where the Court of Claims concluded that the substitute property must have very nearly the same value as the tribe's original property to satisfy Fifth Amendment requirements; see also Creek Nation v. United States, 302 U.S. 620, 622 (1938), where the Court 16/ continued from page 27 to an outright extinguishment of aboriginal title itself or even survive careful scrutiny by the Supreme Court today is doubtful. See generally, N. Newton, At the Whim of the Sovereign: Aboriginal Title Reconsidered, 31 Hastings L.J. 1215. 17/ Just the Oneida claim alone, for example, was valued roughly at $9.2 billion in 1979. held that the date of taking which determines the valuation date is, in turn, determined by the date title passes. 18/ Second, the bills make no pretense of compensating the tribes for interim damages claims (such as for trespass or mesne profit ;) 19/ that are extinguished by the bills. However, a cause of action for damages is a vested property right protected by the due process clause of the Fifth Amendment. Gebbes v. Zimmerman, 290 U.S. 326 18/ It is axiomatic that, "[t]he value of property taken by a governmental body is ascertained as of the date of the taking.' United States v. Clark, 445 U.S. 253, 258 (1980). Quoting from United States v. Dow, 357 U.S. 17, 21 (1958), the Clark Court discussed what, in turn, constitutes a taking by government: "The United States can enter into physical possession of property without authority of a court order; or it can institute condemnation proceedings Id. at 256 n.3. In the case of the tribal lands that are the subject of the bills, the United States has, up to this point, neither physically occupied the lands nor condemned them. The states of New York and South Carolina have, of course, physically dispossessed the Indians, but those state actions had no legal effect upon the tribes' title (see Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977), and are, therefore, irrelevant for purposes of determining whether or when the United States has taken the Indians' land. Were the bills enacted, though, the United States would thereby authorize the physical dispossession of the Indians by the present non-Indian claimants and, as of that date, would have taken tribal land. "[I]t is that event which gives rise to the claim for compensation and fixes the date as of which the land is to be valued United States v. Dow, 357 U.S. at 22. 19/ " Since all transfers of Indian land which have not been approved by Congress in accordance with the Non-Intercourse Act are void, the occupancy of that land over the years has constituted a trespass. See United States v. Southern Pacific Transportation Co., 542 F.2d 676 (9th Cir. 1976). Thus, all the Indian tribes affected by the bills have causes of action for trespass against the present and past occupiers of the land in addition to claims for recovery of the land. |