There is some evidence of this in the amicus brief of Idaho’s chief lawyer, Robert Smylie, who described the pending Indian Claims Commission cases of that state’s four tribes—Shoshone-Bannock, Coeur d’Alene, Kootenai, and Nez Perce. Smylie observed that the federal government’s termination policy would eventually “leave this State the serious problems of providing community and social services and supervising the adjustment of its Indian citizens to the proposed new status of unregulated responsibility.”214 Smylie concluded by stating that the ICC Act should not be “frustrated by an improvident interpretation which would deny the Indians the opportunity to settle their ancient grievances against the Federal Government before its responsibilities to the Indians of Idaho are terminated.”215
More directly, New Mexico Attorney General Richard Robinson said this case was “merely a weapon.” “The real target,” he urged, “was the claims filed before the Indian Claims Commission. . . .”216 This was, indeed, a real concern, and one that many Indians were extremely anxious about since significant amounts of Indian land were still held under aboriginal title throughout the United States.
MASKING WITHIN THE DECISION: THE OPINION
In Justice Stanley F. Reed’s opinion, the Tee-Hit-Ton began with two strikes against them. First, unlike the Northwestern Shoshone, they had no treaty relationship with the United States. And second, the Court was under no statutory direction to consider the tribe’s claims, as it had been in the Shoshone case. However, even if they had met one or both of these requisites, as the Shoshone had done, there was still no guarantee they would emerge victorious in court. On the positive side, the Court of Claims had acknowledged the Tee-Hit-Ton clan as an “identifiable group of American Indians.” Reed had already shown, however, in Shoshone, that in his view Indians had no enforceable natural rights to their inhabited property, regardless of the length of their tenure or their status as a treaty-recognized nation. He had also stated his opinion that the fact that individual Indians were citizens of the United States was not a bar to federal actions aimed at the taking of tribal rights.
Speaking for a majority, six to three, with Justices William Douglas and Felix Frankfurter joining Chief Justice Earl Warren in dissent, Reed began his opinion by restating the Tee-Hit-Ton’s claim. Since this case, like the preceding Shoshone decision and all the pending ICC cases, centered on compensation and not land recovery, Reed said, “Payment, if it can be compelled, must be based upon a constitutional right of the Indians to recover.” Reed then immediately established a questionable legal distinction between the status of Alaskan natives and tribes in the lower forty-eight states:
This is not a case that is connected with any phase of the policy of the Congress, continued throughout our history, to extinguish Indian title through negotiation rather than by force, and to grant payments from the public purse to needy descendants of exploited Indians. The legislation in support of that policy has received consistent interpretation from this Court in sympathy with its compassionate purpose.217
Reed was denying the Tee-Hit-Ton the legal status they had enjoyed under federal law since at least the 1930s. As Cohen stated, “the legal position of the individual Alaskan natives has been generally assimilated to that of the Indians in the United States.”218 “In fact,” said Cohen, “it is now substantially established that they occupy the same relation to the Federal Government as do the Indians residing in the United States; that they, their property, and their affairs are under the protection of the Federal Government; that Congress may enact such legislation as it deems fit for their benefit and protection; and that the laws of the United States with respect to the Indians . . . of the United States proper are generally applicable to the Alaskan natives.”219
Although the federal government never signed treaties with the Alaskan natives, a fact also pertinent to a number of well-known tribes in the lower forty-eight states—Hopi, Tohono O’odham, Yaqui, and others—it was a weak excuse to deny that the Alaskan native groups had comparable political dealings with the federal government. The additional fact that the benefits of the Indian Reorganization Act, a major federal Indian policy, were in 1936 made available to those Alaskan native communities which chose to adopt the act, was ignored by Reed.220 Although the Tee-Hit-Ton chose not to avail themselves of the 1936 act’s provisions—a decision other tribes in the lower forty-eight states also made—their “identifiable” status as an indigenous community had already been conceded by Reed.
Reed restated the Court of Claims’ findings as to the Tee-Hit-Ton’s status as an identifiable group with occupancy rights to their lands. He said, “Because of general agreement as to the importance of the question of compensation for congressionally approved taking of lands occupied in Alaska under aboriginal Indian use and claim of ownership, and the conflict concerning the effect of federal legislation protecting Indian occupation between this decision of the Court of Claims . . . and the decision of the Court of Appeals . . . in Miller v. United States . . . we granted certiorari.”221
Reed had selectively chosen to look at the alleged conflict between two lower court cases without considering the possibility that the 1947 Tongass Act itself deserved constitutional scrutiny as a possibly unconstitutional taking of Indian title. Reed, ignoring the Court of Claims’ finding that the Tee-Hit-Ton had rights of occupancy in their lands, said that “the problem presented is the nature of the petitioner’s interest in the land, if any.”222 The Tee-Hit-Ton argued that they had “full proprietary ownership” in their lands or they had at least a recognized right to unrestricted possession, occupation, and use. In either case, the right would be compensable if taken. The United States, by contrast, denied the Tee-Hit-Ton any compensable interest. The solicitor maintained that if the Tee-Hit-Ton had any property interest at all, it was only “that of the right to the use of the land at the Government’s will. . . .”223 Congress, in other words, in having never “recognized” in the Tee-Hit-Ton any legal interest in the lands they occupied, could take those lands and was not responsible for providing any compensation. It was as if the Tee-Hit-Ton had never existed. Otherwise, how could their very presence not establish their rights to territory?
The Mask of “Permissive Occupancy”
Not surprisingly, Reed endorsed the United States’ position. He focused his rationale on two aspects: (1) What constitutes “recognition”? and (2) What is “Indian title”? As for the question of recognition, Reed noted that this could be “disposed of shortly.”224 He indicated that when Congress “by treaty or other agreement” had stated that Indians may hold their lands “permanently,” then the United States was required to pay compensation if there was a later taking. Reed cited as support several earlier Supreme Court cases including the 1937 Shoshone Tribe of Indians v. United States involving the Wind River Reservation. He threw out the ample evidence provided by the Tee-Hit-Ton’s attorneys—evidence that had been accepted as convincing proof of recognition by the Miller Court in 1947—which had held that Indian title was compensable under the Fifth Amendment.
In discounting this explicit statutory evidence, Reed said that he could find “nothing to indicate any intention by Congress to grant to the Indians any permanent rights in the lands of Alaska occupied by them by permission of Congress [emphasis mine].”225 This is a classic Reed statement. He had taken a congressionally recognized and vested tribal right—recognized also in Worcester, Mitchel, and elsewhere—and reduced it to a conditional occupation subject to the whims of the federal government. Since the Tee-Hit-Ton were living in Alaska before the federal government’s presence, then they occupied the land under their own authority. By Reed’s logic, however, the Tee-Hit-Ton could not have had a viable presence before the United States’ arrival. Even if one accepts Reed’s inaccurate assertion that the Alaskan natives occupied their land with Congress’s “permission”—and the historical evidence would make such an acceptance impossible—this permission would itself be an acknowledgment of ownership.
For Reed, the Tee-Hit-Ton’s nontreaty status guaranteeing their lands, combined with the 1946 Tongass Joint Resolution, was enough to disavow any enforceable property rights for the Tee-Hit-Ton. In Reed’s opinion, the Tongass Act and Congress’s general termination policy affirmed that Alaskan native groups had no territorial or natural resource rights that could withstand federal taking. The Court then moved to a surprising discussion of “Indian title.” This section is so rife with historical inaccuracies, misstatements of fact, and misinterpretations of Supreme Court precedent, that an extended quotation is warranted:
The nature of aboriginal Indian interest in land and the various rights as between the Indians and the United States dependent on such interest are far from novel as concerns our Indian inhabitants. It is well settled that in all the States of the Union the tribes who inhabited the lands of the States held claim to such lands after the coming of the white man, under what is sometimes termed original Indian title or permission from the whites to occupy. That description means mere possession not specifically recognized as ownership by Congress. After conquest they were permitted to occupy portions of territory over which they had previously exercised “sovereignty,” as we use that term. This is not a property right but amounts to a right of occupancy which the sovereign grants and protects against intrusion by third parties but which right of occupancy may be terminated and such lands fully disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians. This position of the Indian has long been rationalized by the legal theory that discovery and conquest gave the conquerors sovereignty over and ownership of the lands thus obtained.227
This passage contains a multitude of errors that Reed argued without hesitation. First, Reed treated recognized original Indian title as synonymous with white “permission” to occupy, whereas most prior courts had held it to be equal to or the equivalent of fee-simple title. By contrast, the United States’ “permission” is merely a gratuity bestowed or delegated by the federal government on tribes. Second, Reed presumed that all Indian groups had been conquered, thus erasing any prior rights they may have had to the land. This statement is also incorrect; as Marshall had previously noted in both Johnson v. McIntosh and Worcester v. Georgia, the notion of “conquest” was largely inapplicable to the tribal-federal relationship. If tribes had actually been conquered, the United States probably would not have felt compelled to negotiate the hundreds of treaties and agreements it entered into with tribes. Nor would the United States, based on those same documents, have paid out millions of dollars for Indian lands. President Truman stated in 1946 upon signing the ICC Act, “This bill makes perfectly clear what many men and women, here and abroad, have failed to recognize, that in our transactions with the Indian tribes we have at least since the Northwest Ordinance of 1787 set for ourselves the standard of fair and honorable dealings, pledging respect for all Indian property rights. Instead of confiscating Indian lands, we have purchased from the tribes that once owned this continent more than 90 percent of our public domain, paying them approximately 800 million dollars in the process.”228
Tribes, in selling their lands, gave express permission to the United States to use the lands as they saw fit. The tribes retained their rights to reserved lands and retained some specific rights, like hunting and fishing, in ceded lands. As for tribes like the Tee-Hit-Ton, which had not sold their lands, a plausible argument can be made that they actually retained all their rights—political, property, and civil—since they had not ceded any of these away in a treaty.
Reed interjected the third factor in his judicial dismemberment of the aboriginal land rights of the Tee-Hit-Ton when he asserted that the “legal theory” of “discovery”—which he symbiotically linked to conquest—gave the United States complete sovereignty and ownership of the lands so acquired. Here, Reed quoted a long section directly from Marshall’s McIntosh decision. In actuality, however, “discovery” is not so much a legal theory as it is a legal fiction which was later discredited by the Supreme Court in several cases.229 Interestingly, Reed, in quoting Marshall, said that discovery gave the discovering nation the exclusive right to either purchase or conquer Indian title. Yet where was the “purchase” of the Tee-Hit-Ton lands and where was the conquest of the Tee-Hit-Ton people? These had not occurred.
Reed, having constructed a set of problematic arguments, completed this section by incorrectly stating, “No case in this Court has ever held that taking of Indian title or use by Congress required compensation.”230 He continued that “the American people [as if the Tee-Hit-Ton, individually, were not Americans] have compassion for the descendants of these 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 legality.”231
Reed was in error when he said that the Supreme Court had never held that a congressional taking of Indian title required compensation. The Court in United States v. Alcea Band of Tillamooks232 had specifically addressed the same question: “. . . whether the Indians have a cause of action for compensation arising out of an involuntary taking of lands held by original Indian title.”233 While recognizing Congress’s power to extinguish Indian title, the Court had said this “compels no conclusion that compensation need not be paid.”234 In the Court’s opinion, “the Indians have more than a merely moral claim for compensation and [a] contrary decision would ignore the plain import of traditional methods of extinguishing original Indian title.”235 In Tillamooks, the Court had also gone to great lengths to show that there was no clear distinction between “original Indian title” and so-called recognized Indian title. In fact, Justice Frederick Vinson, writing for the majority, had said that both the recent and the “older cases explaining and giving substance to the Indian right of occupancy contain no suggestion that only ‘recognized’ Indian title was being considered. Indeed, the inference is quite otherwise.”236
Shortly after Tillamooks was announced, Felix S. Cohen wrote that with this case “the last large gap in the doctrine of original Indian title [has been] filled. . . .”237 “The Alcea case,” Cohen stated, “gives the final coup de grace to what has been called the ‘menagerie’ theory of Indian title, the theory that Indians are less human and that their relation to their lands is not the human relation of ownership but rather something similar to the relation that animals bear to the areas in which they may be temporarily confined.”238 Justice Reed, joined by Wiley Rutledge and Harold Burton, dissented in Tillamooks and emphasized the very menagerie theory that Cohen thought had been displaced. Reed’s arguments were similar to those he used in Tee-Hit-Ton: the Indians had been discovered and conquered by “Christian nations” which gave them sovereignty over all the discovered lands. Reed went so far in his dissent as to analogize Indians exercising aboriginal rights of occupancy with “paleface squatters on public lands without compensable rights if they are evicted.”239
Reed’s dissenting attitude in 1946 had now become the majority�
��s view nine years later in Tee-Hit-Ton. In Tee-Hit-Ton Reed was obliged to distinguish the Tillamooks decision and the Ninth Circuit Court of Appeals case Miller v. United States (1947), which had used the Tillamooks precedent to hold that Indian title was indeed compensable under the Fifth Amendment. He did so first by stating that Tillamooks had only allowed financial recovery because of a congressional jurisdictional act which had permitted payments.
Second, he noted that under the Tillamooks decision, the case was remanded back to the Court of Claims to determine the amount of compensation. The Claims Court held that the Tillamook were entitled to an amount based on the value of the lands at the time of their taking, 1855, plus interest from that date. However, in a per curiam decision in 1951, United States v. Tillamooks, the Supreme Court unanimously held that the band was not entitled to interest because the congressional taking was not a Fifth Amendment taking.
Third, Reed drew from yet another Supreme Court decision, Hynes v. Grimes Packing Company,240 where the Court, in a footnote, disagreed with the holding in Miller and said that they had wrongly relied on Tillamooks as authority. “That opinion,” the Hynes Court held, “does not hold the Indian right of occupancy compensable without specific legislative direction to make payment.”241
Demography and Economy
In two telling footnotes to Tee-Hit-Ton, Reed showed how demography and financial figures may be used to dismantle Indian rights. First, in describing Hynes‘s interpretation of Miller, Reed said a major reason for the Hynes ruling was that the Congress could not have intended to authorize the Department of the Interior to include “an important and valuable fishing area . . . in a permanent reservation for an Indian population of 57 eligible voters.”242 In the next footnote, Reed discussed dollar amounts. He said that in Tillamooks, the value of the land was estimated at 3 million dollars, while the interest would have amounted to 14 million dollars. Reed accepted the government’s argument that if Indian title were to be compensable without specific authorizing congressional legislation, there would be pending claims “under the jurisdictional act aggregating 9,000,000,000 dollars.”243
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