Extinguishing "Original Indian Title"
Original aboriginal title is extinguished by the federal government with the original issuance of a land patent to an individual. The patent, in part, serves as a quitclaim document that evidences that any aboriginal title or further federal claims or clouds on the legal title to that land have been extinguished.
Tribal rights to land may be extinguished only by the federal government. Tribal conveyances to a State or to a private party without federal approval have been held to be invalid. In Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823), the Court held that Indian tribes were incapable of conveying their land directly to individuals. Chief Justice Marshall concluded that discovery conferred upon the European sovereign the "legal title" good against all European governments. The United States succeeded to that title to the extent that it was held by the British. The tribes held only a "right of occupancy," (also called "Indian" or "Original Aboriginal" title.)
In Johnson v. McIntosh, 21 U.S. (8 Wheat.) 574 (1823), the Court determined that Indian tribes that occupied and used land to the exclusion of others (except for mere temporary incursions) had an interest denoted as "right of occupancy." This right of occupancy later came to be known as "original Indian title," "Indian title" or "aboriginal title." That title could be compromised by any party except the federal government.
The Indians could not be deemed a conquered people, stripped of their territorial possessions by superior force. According to English common law and tenets of "natural law," the native peoples could still maintain a rightful claim to the exclusive possession and occupancy of the land as "absolute proprietors of the soil" as long as they: (1) acknowledged no obedience, allegiance or subordination to foreign sovereigns; (2) remained undefeated in possession through conquest by a European sovereign; or (3) had not transferred land to that sovereign by voluntary tribal cession or sale. The title of the Indians was not treated as a right of legal propriety and dominion, but as a right of occupancy. (3 Kent's Comm. 308 to 313; 1 Chalm. Annals, 676, 677; 4 Jefferson's Corresp 478; Worcester v. Georgia, 6 Peters's R. 515). SEE Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974.) The United States, and only the United States, could extinguish the Indian right of occupancy, "either by purchase or conquest." Id. at 587.
In the Western states, Indian lands were customarily ceded by treaty with the United States.
"Recognized title" is title to Indian land that has been recognized by federal treaty or statute. Land ("reservations") set aside by mere executive order has been conferred no such title and such lands may be taken without compensation. SEE Sioux Tribe v. United States, 316 U.S. 317 (1942). Since 1919, all reservations have been required to be created by statute and not Executive Order. (Sioux Tribe v. United States, 316 U.S. 317 (1942); Haynes v. Grimes Packing Co., 337 U.S. 86, 103 (1949).
The primary advantage of recognized title is that it is a property right within the meaning of the Fifth Amendment, so that its taking by the federal government gives rise to a right of compensation plus the payment of legal interest. United States v. Creek Nation, 295 U.S. 103 (1935) and United States v. Sioux Nation, 448 U.S. 371 (1980.)
The federal government may extinguish original Indian title to lands that are not held by virtue of a federal treaty without compensation. SEE Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955), Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528, F.2d 370 (1st Cir. 1975) -concerning lands deeded by the tribe to the state by treaty in which the federal government did not participate or ratify. However, such an action may provide the basis for a federal claim under the Indian Claims Commission Act of 1946.
The Indians Claims Commission Act.(ended in 1978) provided a method of financial settlement for extinguishment of "Original Indian Title." Payment of an award, however, extinguished any further tribal claim of an aboriginal title to occupy the lands for which compensation was paid. SEE United States v. Dann, 470 U.S. 39 (1985).
Nearly all of the land now set aside for Indians whether by treaty, statute or executive order is in trust with the United States holding naked legal title and the Indians enjoying beneficial interest. That beneficial interest can be held communally by the tribe or individually through the allotment system General Allotment (Dawes) Act of 1887, 25 U.S.C.A. Section 331 et seq. Under the Allotment Act, the United States held the naked title in trust for a period of time with the entire beneficial interest being in the individual allottee, until such period that it was to become totally alienable and taxable.