takings

What happened

The Fifth Amendment says private property cannot be taken for public use without just compensation. Two Supreme Court cases show how that rule has been applied to Native land, and where it stops.

In Tee-Hit-Ton Indians v. United States (decided Feb. 7, 1955), a group of 60 to 70 Alaska Natives, a clan of the Tlingit, sought payment for timber taken from lands they said belonged to them. The Court rejected the claim. It said that Indian occupation of land without government recognition of ownership creates no property right, and that the taking by the United States of unrecognized Indian title is not compensable under the Fifth Amendment. It grounded this in the rule from Johnson v. McIntosh.

United States v. Sioux Nation of Indians (decided June 30, 1980) went the other way. The Fort Laramie Treaty of 1868 had set apart the Great Sioux Reservation, including the Black Hills. An 1876 agreement signed by only about 10 percent of adult Sioux men was implemented by Congress in the Act of 1877. The Court held that act effected a taking of tribal property, which implied an obligation to pay just compensation, including interest.

The Court of Claims had calculated the principal at $17.1 million, the 1877 fair market value of the Black Hills, with 5 percent annual interest from 1877. The distinction between recognized and unrecognized title remains the key line these two cases draw.

Summarized with AI assistance from 4 sources and checked against their words; not yet reviewed by historians or by the nations. Report an error