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of the availability to Indian tribes of this remedy against Tove failed to accompli! the United States for any Fifth Amendment taking claims, 4. C. real

the courts would not strike down legislation designed to

Adeal with the severe economic and social problems caused by the legislation coules in a compens

the Nonintercourse Act claims even if such legislation did -effect a taking of compensable property. Rather, the courts. would, following the authority of the Regional Rail

Reorganization Act Cases, uphold the constitutionality of the legislation on the grounds that 28 U.S.C. $1505 enabled the affected tribes to sue the United States in the Court of Claims for any shortfall of constitutional dimensions in the compensation received under the legislation.

2.

ད་

1/

Relevant case law demonstrates that the
compensation that might be awarded by the
Court of Claims will be based on the value
"of the lands at the time of the 18th and
19th century transfers, and that the total
award will be within reasonable limits.

Even if the analysis in this memorandum

-- were

that legislation ratifying the original transfers of recognized title lands would not constitute a taking of property incorrect, Congress need not fear that the United States will be liable for judgments of potentially unlimited amounts based

1

This analysis and conclusion assumes that the legislation does not specifically withdraw the jurisdiction of the Court of Claims under 28 U.S.c. $1505 to entertain any such claims raised by the affected tribes.

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on the current fair market value of the lands involved. Prior decisions of the Supreme Court and the Court of Claims leave no doubt that, to the extent legislation that approves or ratifies an earlier transfer of recognized title lands effective as of the date of the transfer constitutes a taking of property, the date of the taking will be the date of the original transfer.

Brief reference to two decisions that have been discussed in previous sections should be sufficient to make this point clear. In Shoshone Tribe v. United States, 299 U.S. 476 (1937), the Supreme Court determined that subsequent federal approval of an 1878 action of a federal Indian agent in placing a band of Arapahoes on lands within the Shoshone reservation effected a taking as of 1878:

Looking at events in retrospect through
the long vista of the years we can see
that from the outset the occupancy of
the Reservation was intended to be per-
manent; that however tortious in its
origin, it has been permanent in fact;
and that the Government of the United
States through the action and inaction
of its executive and legislative depart-
ments for half a century of time, has
ratified the wrong, adopting the de
facto appropriation by relation as of
the date of its beginning.1/

Accordingly, the Court determined that the Shoshones should be

awarded the value of the lands as of 1878.

299 U.S. at 495.

Paiute Nation, 490 F.2d 954 (Ct. Cl. 1974), the Court of

Claims determined, on the authority of the Shoshone decision,

that the retroactive validation by the United States of the the Nonintercourbe Act clubmis

entries of miners on the tribe's lands even though suchourts effect a taking of compensable property.

entries were originally unauthorized and tortious, made the dates of the original entries the dates of the takings:

[I]nsofar as later legislation adopted and
validated the miners' entries and staking
of claims, beginning in 1859, such entries,
not the dates or the legislation, were the
taking dates of the parcels entered upon,1/

Thus, if a tribe can establish that

legislation approving an earlier transfer of recognized title lands as of the date of the transfer effects a taking of property compensable under the Fifth Amendment, it will be entitled to a judgment in the Court of Claims based on (1) the fair market value of the lands involved at the time they were transferred in the 18th or 19th centuries, less (2) any consideration received by the tribe at the time of transfer, plus (3) simple interest -- invariably set in Indian land

490 F.2d at 958 (emphasis supplied). While the Northern Paiute decision involved a claim based on aboriginal title under the Indian Claims Commission Act, the court's analysis of the relevant date for valuing the tribal lands would clearly have been the same if a constitutional taking had been involved..

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cases at five percent per annum

1

-

from the date of the

transfer to the date of payment of the Court of Claims

award, and less (4) any amounts received by the tribe under the terms of the legislation.

Some idea of the magnitude of a potential

3/

2

Fifth Amendment taking judgment may be provided by a cursory analysis of the Nonintercourse Act claim of the Oneida Nation. At the present time, the claim of the Oneidas to approximately 300,000 acres in upstate New York constitutes the largest claim potentially involving recognized title. In the complaint filed by the Oneida Nation against the counties of Oneida and Madison, the tribe alleged that it received approximately fifty cents an acre in transferring its land to the State of New York in 1795, whereas the same land was sold off to settlers by the State in 1797 for approximately $3.50 per acre. The tribe also alleged that nearby land was being sold during this same period for $1.50 to $6.00 per acre. Assuming that it were

See, e.g., United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938); United States v. Creek Nation, 295 U.S. 102 (1935); United States v. Cherokee Nation, 202 U.S. 101 (1906). Research has revealed no decision that has awarded compound interest on a Fifth Amendment taking claim.

2/ The claims of the Passamaquoddy and Penobscot Tribes to 12 million acres in Maine clearly involve aboriginal title only. 31 Oneida Indian Nation v. County of Oneida, Civil Action No. 70-CV-35 (N.D.N.Y., filed Feb. 5, 1970).

.

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established, based on contemporaneous sales of comparable land, that the fair market value of the land purchased by

the State of New York in 1795 was as much as $5.00 per acre,

e

and that all 300,000 acres involved in the Oneida claim”:

tional claim of the Oneida Nation for compensation in the

Court of Claims in 1978 would be calculated as follows:

(3) plus interest at 5% per annum from
1795 to 1978 (183 yrs. x 5% = 915%) +12,352,500

$13,702,500

Any compensation provided by Congress in the

legislation would be applied as an offset against the amount, calculated above, that would be awarded by the Court of Claims. Accordingly, even if legislation resolving Indian land claims based on recognized title were determined to constitute a taking of property compensable under the Fifth Amendment a result that would be at odds with existing case law liability of the United States would not be catastrophic.

-

the

Some portion of the 300,000 acres was sold after 1795, but information sufficient to determine the dates of these other transfers, the consideration received by the tribe, the fair market value of the land at the time, etc., has not been obtained.