American Indian Law Deskbook

By Hardy Myers; Clay Smith | Go to book overview
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Chapter 3
Indian Land and Property: Title and Use

Land occupancy and ownership issues have been a central concern of Indian law since the nation's founding. Beginning with the first Trade and Intercourse Act in 1790, 1 statutory restraints have limited the ability of tribes to alienate land. In Johnson v. McIntosh,2 Chief Justice Marshall established common law principles based on the discovery doctrine that paralleled the statutory restraints. Despite the relative clarity of federal law in this regard, varying historical circumstances and statutory or treaty considerations have been a fertile source of litigation for tribal land conveyances. Difficult questions have arisen from congressional and Executive Branch actions affecting reservation boundaries and, therefore, the scope of Indian country. Significant controversy has attended efforts to reconcile tribal land grants with the equal footing doctrine's presumption that states hold title to the beds and banks of navigable rivers and lakes. An important component of land ownership is the ability of tribes and individual Indians to recover economic rent from their lands by leasing the mineral and surface estates, granting rights-of- way, and authorizing timber harvests. Economic use, however, has been inhibited by the problem of fractionated title, that is, undivided ownership of land by many individuals. Finally, a collateral issue to property interests is the handling and control of Indian remains, grave goods, and sacred and cultural objects.


I. SOURCES OF TRIBAL LAND OCCUPANCY RIGHTS

There are two sources of tribal land occupancy rights: an aboriginal right premised on exclusive use of a particular territory at the time of first European contact, and an entitlement arising subsequent to such contact under the governing sovereign's laws. The first source of entitlement, often termed aboriginal or Indian title, derived largely from international law concepts

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1
Act of July 22, 1790, 1 Stat. 137 (partially codified at 25 U.S.C. § 177).
2
21 U.S. (8 Wheat.) 543 (1823).

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