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other European potentate than the first discoverer of the coast of the particular region claimed; and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term "nation,” so generally applied to them, means “a people distinct from others." The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “treaty” and “nation" are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.”
Although it was recognized that we would conclude treaties with the Indians as sovereigns, it soon became clear that they were, in fact, something less than sovereign in their relationship to the United States. In the case of Jones v. Meehan 175 U.S. 1, 10 (1899) the Court described their status in these words :
"The Indian tribes within the limits of the United States are not foreign nations; though distinct political communities, they are in a dependent condition; and Chief Justice Marshall's description, that they are in a state of pupilage, and 'their relation to the United States resembles that of a ward to his guardian,' has become more and more appropriate as they have grown less powerful and more dependent. Cherokee Nation v. Georgia, 5 Pet. 1, 17; Elk v. Wilkins, 112 U.S. 94, 99; United States v. Kagama, 118 U.S. 375, 382, 384; Stephens v, Choctaw Nation, 174 U.S. 445, 484.”
Other courts described the Indian tribes as "separate nations," "domestic dependent nations," "distinct political communities," "limited dependent sovereignties," and "quasi-sovereign governments.” One of the most comprehensive analyses of their status is found in Cherokee Nation v. Southern Kansas Railway Co. 135 U.S. 641 (1890).
* * * "The proposition that the Cherokee Nation is sovereign in the sense that the United States is sovereign, or in the sense that the several States are sover-eign, and that that nation alone can exercise the power of eminent domain within its limits, finds no support in the numerous treaties with the Cherokee Indians, or in the decisions of this court, or in the acts of Congress defining the relations of that people with the United States. From the beginning of the government to the present time, they have been treated as "wards of the nation," "in a state of pupil-age," "dependent political communities," holding such relations to the general government that they and their country, as declared by Chief Justice Marshall in Cherokee Nation v. Georgia, 5 Pet. 1, 17, “are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connection with them, would be considered by all as an invasion of our territory and an act of hostility.'” [Id. at 653-654]
Many courts have asserted that a guardian/ward relationship exists between the United States and the Indian tribes. “Their relation to the United States resembles that of a ward to his guardian." Cherokee Nation v. Georgia 5 Pet. (30 U.S. 1, 16 (1831)). The courts have continually sustained those sentiments. Choctaw Nation v. United States 119 U.S. 1, 27 (1886) ; Klamath Indians v. United U.S. 1, 16 (1831). The courts have continually sustained those sentiments. ChocStates 296 U.S. 244, 254 (1935); Seminole Nation v. United States 316 U.S. 286, 296–297 (1942); and most recently, Joint Tribal Council of Passamaquoddy Tribe v. Morton 528 F. 2d 370, 375–380 (1st Cir. 1975). Since a guardian bas certain rights and responsibilities that he must exercise in his ward's behalf, this relationship is indicative of the less than sovereign status of the tribes. The NonIntercourse Act (1 Stat. 137, orginally passed in 1790, and currently codified at 25 U.S.C. 177) limits the situations in which an Indian can transfer tribal lands to those situations when the grant is effected". by a treaty or convention entered into pursuant to the Constitution.” That Act is also indicative of the trust relationship that exists between the U.S. Government and the Indians. B. Affect of treaties on title
Many treaties provided that the Indians had a right to continue living on their tribal lands; the title thus recognized was Indian Title. Although that title was to be respected by all other Indian tribes, by private citizens and by the States, ultimate federal power over the land was acknowledged.
“Unquestionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy, which could only be interfered with or determined by the United States.' Cramer v. United States, 261 U.S. 219, 227. This policy was first recognized in Johnson v. M’Intosh, 8 Wheat. :543, and has been repeatedly reaffirmed. Worcester v. Georgia 6 Pet. 515; Mitchel v. United States, 9 Pet. 711; Chouteau v. Molony, 16 How. 203; Holden v. Joy, 17 Wall. 211; Buttz v. Northern Pacific Railroad, supra; United States v. Shoshone Tribe, 304 U.S. 111. As stated in Mitchel v. United States, supra, p. 746,
Indian right of occupancy is considered as sacred as the fee simple of the whites.' Whatever may have been the rights of the Walapais under Spanish law, the Cramer case assumed that lands within the Mexican Cession were not expected from the policy to respect Indian right of occupancy. Though the Cramer
"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. Buttz v. Northern Pacific Railroad, supra, p. 66. As stated by Chief Justice Marshall in Johnson v. M’Intosh, supra, p. 586, the exclusive right of the United States to extinguish Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts. Beecher v. Wetherby, 95 U.S. 517, 525.” [United States v. Santa Fe Pacific R. Co. 314 U.S. 339, 345, 347 (1941)]
An earlier court had described the situation in this manner.
“Now, it is true that in decisions of this court, the Indian right of occupancy of tribal lands, whether declared in a treaty or otherwise created, has been stated to be sacred, or, as some times expressed, as sacred as the fee of the United States in the same lands. Johnson v. McIntosh, (1823) 8 Wheat. 543, 574; Cherokee Nation v. Georgia, (1831) 5 Pet. 1, 48; Worcester v. Georgia, (1832) 6 Pet. 515, 581 ; United States v. Cook, (1873) 19 Wall. 591, 592; Leavenwoorth &c. R. R. Co. v. United States, 1875) 92 U.S. 733, 755; Beecher v. Wetherby, (1877) 95 U.S. 517, 525. But in none of these cases was there involved a controversy between Indians and the government respecting the power of Congress to administer the property of the Indians. The questions considered in the cases referred to, which either directly or indirectly had relation to the nature of the property rights of the Indians, concerned the character and extent of such rights as respected States or individuals. In one of the cited cases it was clearly pointed out that Congress possessed a paramount power over the property of the Indians, by reason of its exercise of guardianship over their interests, and that such authority might be implied, even though opposed to the strict letter of a treaty with the Indians. Thus, in Beecher v. Wetherby, 95 U.S. 517, discussing the claim that there had been a prior reseravtion of land by treaty to the use of a certain tribe of Indians, the court said (p. 525):
*“ “But the right which the Indians held was only that of occupancy. The fee was in the Uuited States, subject to that right, and could be transferred by them whenever they chose. 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.'” [Lone Wolf v. Hitchcock 187 U.S. 553, 564–565 (1903)]
Indian title, or "aboriginal title," or "right of occupancy” was the original, or basic. source of Indian right in the land. However certain tribes later received a fee simple title.
“The right of occupancy was originally the sole title of the Indian to the land, but later, in consideration of cessions of lands, title in fee simple was passed to certain tribes, particularly the Cherokees, Chickasaws, Choctaws, Creeks, and Seminoles. This was not in conflict with the original principle that the primary title of the Indian was confined to occupancy. It merely indicated that the government considered it good policy to pass a title in fee to land which
it already held in fee and to which the original Indian right of occupancy had been extinguished. Most of these fee grants to the tribes, however, contained a provision that the fee should revert to the United States if the tribe became extinct. Still later, when the principle of allotment in severalty was adopted and the land divided among the individual Indians, the tribal title was extinguished and titles in fee passed to the individuals of the tribe. This process is still going
tent being held in trust by the government if the Indian is incompetent to manage his affairs.” [The Office of Indian Affairs, Laurence Schmeckebier, AMS Press, 1927, pgs 5-6.]
However, even rights held in fee by the Indian tribes as the result of treaties were still subject to the control of the United States Government.
"By the treaty of New Echota, 1835, the United States covenanted and agreed that the lands ceded to the Cherokee Nation should at no future time, without their consent, be included within the territorial limits or jurisdiction of any State or Territory, and that the government would secure to that nation the right by their national councils to make and carry into effect all such laws as they may deem necessary for the government of the persons and property within their own country, belonging to their people, or such persons as have connected themselves with them; and, by the treaties of Washington, 1846 and 1866, the United States guaranteed to the Cherokees the title and possession of their lands, and jurisdiction over their country. Revision of Indian Treaties, pp. 65, 79, 85. But neither these nor any previous treaties evinced any intention, upon the part of the government, to discharge them from their condition of pupilage or dependency, and constitute them a separate, independent, sovereign people, with no superior within its limits. This is made clear by the decisions of this court, rendered since the cases already cited.”
"In view of these authorities, the contention that the lands through which the defendant was authorized by Congress to construct its railway, are held by the Cherokees as a sovereign nation, without dependence on any other, and that the right of eminent domain within its territory can only be exercised by it, and not by the United States, except with the consent of the Cherokee Nation, cannot be sustained. The fact that the Cherokee Nation holds these lands in fee simple under patents from the United States, is of no consequence in the present discussion ; for the United States may exercise the right of eminent domain, even within the limits of the several States, for purposes necessary to the execution of the powers granted to the general government by the Constitution. Such an authority, as was said in Kohi v. United States, 91 U.S. 367, is essential to the independent existence and perpetuity of the United States, and is not dependent upon the consent of the States. United States v. Fox, 94 U.S. 315, 320; United States v. Jones, 109 U.S. 513; United States v. Great Falls Manufacturing Co., 112 U.S. 645 ; Van Brocklin v. State of Tennessee, 117 U.S. 151, 154. As was said by Mr. Justice Bradley in Stockton v. Baltimore &c. Railroad, 35 Fed. Rep. 9, 19: The argument based upon the doctrine that the States have the eminent domain or highest dominion in the lands comprised within their limits, and that the United States have no dominion in such lands, cannot avail to frustrate the supremacy given by the Constitution to the government of the United States in all matters within the scope of its sovereignty. This is not a matter of words, but of things. If it is necessary that the United States government should have an eminent domain still higher than that of the State, in order that it may fully carry out the objects and purposes of the Constitution, then it has it. What. ever may be the necessities or conclusions of theoretical law as to eminent domain or anything else, it must be received as a postulate of the Constitution that the government of the United States is invested with full and complete power to execute and carry out it purposes. It would be very strange if the national government, in the execution of its rightful authority, could exercise the power of eminent domain in the several States, and could not exercise the same power in a Territory occupied by an Indian nation or trible, the members of which were wards of the United States, and directly subject to its political control. The lands in the Cherokee territory, like the lands held by private owners everywhere within the geographical limits of the United States, are held subject to the authority of the general government to take them for such objects as are germane to the execution of the powers granted to it; provided only, that they are not taken without just compensation being made to the owner.” [Cherokee v. Kansas 175 U.S., supra, at 654, 655–657.]
And in Tee-Hit-Ton Indians v. United States 348 U.S. 272, 288-289 (1955), the court noted that,
“The line of cases adjudicating Indian rights on American soil leads to the conclusion that Indian occupancy, not specifically recognized as ownership by action authorized by Congress, may be extinguished by the Government without compensation.”
Thus, the title interest conveyed to the Indian tribes by treaty was something less than a complete unalienable fee simple. The United States Government retained certain rights to the land, including the right to regulate to whom the land could be transferred, and the right to utilize the land for public purposes. The American College Dictionary defines "dispose of” as “a. to deal with definitely; to get rid of. b. to make over or part with, as by gift or sale." A disposal of the property in the Canal Zone to a sovereign nation such as Panama would, indeed, effectively dispose of federal property. A treaty returning the Canal Zone to Panama would limit United States control in that area to a far greater degree than did the transfer of a land interest in this country to the American Indian. In view of the nature of Indian land law, it is possible to argue that those treaties never effectively disposed of property in the sense contemplated by Article IV, Section 3, clause 2 of the Constitution.
Even if those treaties are considered to have disposed of federal property in Article IV terms, the treaties should not be considered valid authority for disposal of the Canal Zone to Panama by treaty. The basis for this treaty is found in a series of cases in which the court has concluded that the Congress did, indeed, consent to the transfer of title by treaty. C. The implied exercise of article IV prerogatives
Sioux Tribe of Indians v. United States 316 U.S. 317 (1942) involved the following situation. By the Fort Laramie Treaty of 1868, the Sioux were granted certain lands in what is now South Dakota and Nebraska. Several Executive Orders issued in 1875 and 1876 withdrew tracts of public land bordering the Reservation from the public domain and set them apart for the use of the Sioux Tribe in addition to those lands specified in the treaty. The lands were withdrawn from the public domain because they were being used by persons who were selling whiskey to the Sioux. When the "whiskey-runners" were no longer a disruptive factor, the President issued Executive orders returning those parcels of land to the public domain. The Sioux contended that the Executive orders of 1875 and 1876 conveyed to their tribe the same type of interest conveyed by the Fort Laramie Treaty of 1868. They further alleged that the restoration of those lands to the public domain entitled them to compensation for their fair value of lands taken.
The government answered that the Executive lacked the power to create a compensable interest in lands set aside by executive order. The court decided that the President could not create such an interest without the consent of Congress. It state that:
“Section 3 of Article IV of the Constitution confers upon Congress exclusively 'the power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States. Nevertheless, ‘from an early period in the history of the government it has been the practice of the President to order, from time to time, as the exigencies of the public service required, parcels of land belonging to the United States to be reserved from sale and set apart for public use. Grisar v. McDowell, 6 Wall. 363, 381. As long ago as 1830, Congress revealed its awareness of this practice and acquiesced in it.4 By 1855 the President had begun to withdraw public lands from sale by executive order for the specific purpose of establishing Indian reservations.5 From that date until 1919,8 hundreds of reservations for Indian occupancy and for other purposes were created by executive order. Department of the Interior, Executive Orders Relating to Indian Reservations, passim; United States v. Midwest Oil Co., 236 U.S. 459, 469 470. Although the validity of these orders was occasionally questioned, doubts were quieted in United States v. Midwest Oil Co., supra. In that case, it was squarely held that, even in the absence of express statutory authorization, it lay within the power of the President to withdraw lands from the public domain. Cf. Mason v. United States, 260 U.S. 545." Sioux at 324-325. and concluded:
"* * * Concededly, where lands have been reserved for the use and occupation of an Indian Tribe by the terms of a treaty or statute, the tribe must be compensated if the lands are subsequently taken from them. Shoshone Tribe v. United States, 299 U.S. 476; United States v. Shoshone Tribe, 304 U.S. 111 United States v. Klamath Indians, 304 U.S. 119. Since the Constitution places the authority to dispose of public lands exclusively in Congress, the executive's power to convey any interest in these lands must be traced to Congressional delegation of its authority. The basis of decision in United States v. Midwest Oil Co., was that, so far as the power to withdraw public lands from sale is concerned, such a delegation could be spelled out from long continued Congressional acquiesence in the executive practice. The answer to whether a similar delegation occurred with respect to the power to convey a compensable interest in these lands to the Indians must be found in the available evidence of what consequences were thought by the executive and Congress to flow from the establishment of executive order reservations." 8 [Id. at 326 citations omitted.]
By the Act of February 11, 1897, 29 Stat. 526, c. 216, Congress had declared public lands containing minerals open for sale. In 1909 the President, by Proclamation, withdrew certain lands containing petroleum from sale: government owned oil lands were being purchased at such a rapid rate, it had become apparent that the United States would soon be reduced to purchasing oil at high rates from private sources. United States v. Midwest Oil 236 U.S. 459 (1915) sustained the power of the Executive to withdraw lands from the public domain without statutory authority. The decision enumerated instances prior to 1910 in which the President had issued orders withdrawing land from private acquisition, including 99 Orders establishing or enlarging Indian Reservations. The court then discussed the history of Presidential actions in making reservations and withdrawals of public lands without the express consent of Congress, and cited numerous Opinions of the Attorney General sustaining the President's power.
“2. It may be argued that while these facts and rulings prove a usage they do not establish its validity. But government is a practical affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long-continued action of the Executive Department-on the presumption that unauthorized acts would not have been allowed to be so often repeated as to crystallize into a regular practice. That presumption is not reasoning in a circle but the basis of a wise and quieting rule that in determining the meaning of a statute or the existence of a power, weight shall be given to the usage itselfeven when the validity of the practice is the subject of investigation.” [Midwest at 472-473]
The court cited several decisions that:
""* * * clearly indicate that the long-continued practice, known to and acquiesced in by Congress, would raise a presumption that the withdrawals had been made in pursuance of its consent or of a recognized administrative power of the Executive in the management of the public lands. This is particularly true in view of the fact that the land is property of the United States and that the land laws are not of a legislative character in the highest sense of the term (Art. 4, § 3) "but savor somewhat of mere rules prescribed by an owner of property for its disposal.” Butte City Water Co. v. Baker, 196 U.S. 126.
These rules or laws for the disposal of public land are necessarily general in their nature. Emergencies may occur, or conditions may so change as to require that the agent in charge should, in the public interest, withhold the land from sale; and while no such express authority has been granted, there is nothing in the nature of the power exercised which prevents Congress from granting it by implication just as could be done by any other owner of property under similar conditions. The power of the Executive, as agent in charge, to retain that property from sale need not necessarily be expressed in writing. Lockhart v. Johnson, 181 U.S. 520; Bronson v. Chappell, 12 Wall. 686; Campbell v. City of Kenosha, 5 Wall. 194 (2).
“For it must be borne in mind that Congress not only has a legislative power over the public domain, but it also exercises the powers of the proprietor therein. Congress 'may deal with such lands precisely as a private individual may deal with his farming property. It may sell or withhold them from sale.' Camfield v. United States, 167 U.S. 524 ; Light v. United States, 220 U.S. 536. Like any other owner it may provide when, how and to whom its land can be sold. It can permit it to be withdrawn from sale. Like any other owner, it can waive its strict rights, as it did when the valuable privilege of grazing cattle on this public land was held