280 OCTOBER TERM, 1954. Opinion of the Court. 348 U. S. right of occupancy to another. It confirmed the practice of two hundred years of American history "that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest." P. 587. "We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted." P. 588. "Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill, prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighbourhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed. The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies." Pp. 590-591. See Buttz v. Northern Pacific R. Co., 119 U. S. 55, 66; Martin v. Waddell, 16 Pet. 367, 409; Clark v. Smith, 13 Pet. 195, 201. In Beecher v. Wetherby, 95 U. S. 517, a tract of land which Indians were then expressly permitted by the United States to occupy was granted to Wisconsin. In TEE-HIT-TON INDIANS v. UNITED STATES. 281 a controversy over timber, this Court held the Wisconsin title good. "The grantee, it is true, would take only the naked fee, and could not disturb the occupancy of the Indians: that occupancy could only be interfered with or determined by the United States. It is to be presumed that in this matter the United States would be governed by such considerations of justice as would control a Christian people in their treatment of an ignorant and dependent race. Be that as it may, the propriety or justice of their action towards the Indians with respect to their lands is a question of governmental policy, and is not a matter open to discussion in a controversy between third parties, neither of whom derives title from the Indians. The right of the United States to dispose of the fee of lands occupied by them has always been recognized by this court from the foundation of the government." P. 525. In 1941 a unanimous Court wrote, concerning Indian title, the following: "Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political, not justiciable, issues." United States v. Santa Fe Pacific R. Co., 314 U. S. 339, 347. No case in this Court has ever held that taking of Indian title or use by Congress required 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 will 318107 O-55-24 282 OCTOBER TERM, 1954. Opinion of the Court. 348 U.S. ingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability. 60 Stat. 1050. (b) There is one opinion in a case decided by this Court that contains language indicating that unrecognized Indian title might be compensable under the Constitution when taken by the United States. United States v. Tillamooks, 329 U. S. 40. Recovery was allowed under a jurisdictional Act of 1935, 49 Stat. 801, that permitted payments to a few specific Indian tribes for "legal and equitable claims arising under or growing out of the original Indian title" to land, because of some unratified treaties negotiated with them and other tribes. The other tribes had already been compensated." Five years later this Court unanimously held that none of the former opinions in Vol. 329 of the United States Reports expressed the view that recovery was grounded on a taking under the Fifth Amendment. United States v. Tillamooks, 341 U. S. 48. Interest, payable on recovery for a taking under the Fifth Amendment. was denied. Before the second Tillamook case, a decision was made on Alaskan Tlingit lands held by original Indian title. Miller v. United States, 159 F. 2d 997. That opinion holds such a title compensable under the Fifth Amendment on reasoning drawn from the language of this Court's first Tillamook case.15 After the Miller decision, 14 329 U. S., at p. 44.. 15 It relies also, p. 1001, on Minnesota v. Hitchcock, 185 U. S. 373, and United States v. Klamath Indians, 304 U. S. 119. These cases, however, concern Government taking of lands held under Indian title recognized by the United States as an Indian reservation. See 185 U. S., at 390, 304 U. S., at 121, 16 Stat. 707, United States v. Algoma Lumber Co., 305 U. S. 415, 420, and 329 U. S. 40, 52, note 29. See United States v. 10.95 Acres of Land, 75 F. Supp. 841. TEE-HIT-TON INDIANS v. UNITED STATES. 283 this Court had occasion to consider the holding of that case on Indian title in Hynes v. Grimes Packing Co., 337 U. S. 86, 106, note 28. We there commented as to the first Tillamook case: "That opinion does not hold the Indian right of occupancy compensable without specific legislative direction to make payment." We further declared "we cannot express agreement with that [compensability of Indian title by the Miller case] conclusion." 16 Later the Government used the Hynes v. Grimes Packing Co. note in the second Tillamook case. petition for certiorari, p. 10, to support its argument that the first Tillamook opinion did not decide that taking of original Indian title was compensable under the Fifth Amendment." Thereupon this Court in the second Tillamook case, 341 U. S. 48, held that the first case was not "grounded on a taking under the Fifth Amendment." Therefore no interest was due. This later Tillamook 16 The statement concerning the Miller case was needed to meet the Grimes Packing Company argument that Congress could not have intended to authorize the Interior Department to include an important and valuable fishing area, see Hynes v. Grimes Packing Co.. 337 U. S., at 95, note 10, in a permanent reservation for an Indian population of 57 eligible voters. Actual occupation of Alaskan lands by Indians authorized the creation of a reservation. 337 U. S., at 91. One created by Congress through recognition of a permanent right in the Indians from aboriginal use would require compensation to them for reopening to the public. Id. at 103-106. It was therefore important to show that there was no right arising from aboriginal occupation. 17 Three million dollars was involved in the Tillamook case as the value of the land, and the interest granted by the Court of Claims was $14,000,000. The Government pointed out that if aboriginal Indian title was compensable without specific legislation to that effect, there were claims with estimated interest already pending under the Indian jurisdictional act aggregating $9,000,000,000. 16-301 0 - 83 - 25 284 OCTOBER TERM. 1954. Opinion of the Court. 348 U.S. decision by a unanimous Court supported the Court of Claims in its view of the law in this present case. See Tee-Hit-Ton Indians v. United States, 128 Ct. Cl.. at 87. 120 F. Supp.. at 204-205. We think it must be concluded that the recovery in the Tillamook case was based upon statutory direction to pay for the aboriginal title in the special jurisdictional act to equalize the Tillamooks with the neighboring tribes, rather than upon a holding that there had been a compensable taking under the Fifth Amendment. This leaves unimpaired the rule derived 18 18 In Cariño v. Insular Government of the Philippine Islands, 212 U. S. 449, this Court did uphold as valid a claim of land ownership in which tribal custom and tribal recognition of ownership played a part. Petitioner was an Igorot who asserted the right to register ownership of certain land although he had no document of title from the Spanish Government and no recognition of ownership had been extended by Spain or by the United States. The United States Government had taken possession of the land for a public use and disputed the fact that petitioner had any legally recognizable title. The basis of the Court's decision, however, distinguishes it from applicability to the Tee-Hit-Ton claim. The Court relied chiefly upon the purpose of our acquisition of the Philippines as disclosed by the Organic Act of July 1, 1902, which was to administer property and rights "for the benefit of the inhabitants thereof." 32 Stat. 695. This purpose in acquisition and its effect on land held by the natives was distinguished from the settlement of the white race in the United States where the dominant purpose of the whites in America was to occupy the land." 212 U. S., at 458. The Court further found that the Spanish law and exercise of Spanish sovereignty over the islands tended to support rather than defeat a prescriptive right. Since this was no communal claim to a vast uncultivated area, it was natural to apply the law of prescription rather than a rule of sovereign ownership or dominium. Cariño's claim was to a 370-acre farm which his grandfather had fenced some fifty years before and was used by three generations as a pasture for livestock and some cultivation of vegetables and grain. The case bears closer analogy to the ordinary prescriptive rights situation rather than to a recognition by this Court of any aboriginal use and possession amounting to fee simple ownership. |