This Day in History 1955: Alaskans Natives Lose Property Rights to the Doctrine of Discovery

On this day in history, Feb. 7, 1955, the U.S. Supreme Court issued its ruling in Tee-Hit-Ton Indians v. United States, a modern case of how the courts have applied the Doctrine of Discovery.

This case involved the Tee-Hit-Ton Indians, a clan of the Tinglit Indians in Alaska. The U.S. Department of Agriculture sold timber rights on their land to private interests. The Tee-Hit-Ton sued for compensation and lost.

The case started in the Court of Claims. It found that the Tee-Hit-Ton had “original Indian title” or “Indian right of occupancy” when Russian controlled Alaska prior to 1867. (The term “right of occupancy” comes from the Doctrine of Discovery, a 19th Century legal construct which says while American Indians have the right to occupy the land, the government has the title.)

In Tee-Hit-Ton Indians vs. the United States, the U.S. Supreme Court wrote:

It was further held that if such original Indian title survived the Treaty of 1867 … by which Russia conveyed Alaska to the United States, such title was not sufficient basis to maintain this suit as there had been no recognition by Congress of any legal rights in [the Tee-Hit-Ton] to the land in question.

To further make its point, the Supreme Court adds the following:

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 willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability.

This flawed and misleading paragraph reflects more opinion than legal reasoning. Let’s break it down:

  1. “No case in this Court has ever held that taking of Indian title or use by Congress required compensation.” Every treaty signed by the United States with American Indian tribes required some compensation for the taking of lands. To the extent the Court has heard treaty-related cases, it has dealt with the issue of compensation for land. As one example, United States v. Shoshone Indian Tribes (1938) the U.S. Supreme Court said an 1868 treaty affirmed the Shoshone Tribe’s rights to the minerals and timber rights on their reservation. That implies that improper taking requires compensation.
  2. “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.” This is a matter of opinion, not fact. Doubtful many American Indians would agree. Further, this is a tortured sentence. Restated more clearly, it reads: “The drive of civilization deprived Indians of their homes and hunting grounds.” That framing hides the fact that it was people that are responsible for these acts, not some mystical, disembodied “drive of civilization.” The harm was done by individual decisions, not the force of nature.
  3. “They seek to have the Indians share the benefits of our society as citizens of this Nation. Generous provision has been willingly made to allow tribes to recover for wrongs, as a matter of grace, not because of legal liability. ” Again, opinion, not fact. What is meant by “share the benefits of our society,” and “generous provisions” would be matters hotly disputed. Also, the court acknowledges that “wrongs” were done. One would think it is the court’s job to correct wrongs. But instead, the court turns to the religious elements of the Doctrine of Discovery. It said any compensation — the righting of wrongs — received by Indians was “a matter of grace” not “legal liability.” The court chose not to try to define “grace.” If it had, the definition would not be recognizable to the common person.

 

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