6

County of Oneida, 414 U.S. 661, 667 (1974); Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279-81 (1955); United States v. Santa Fe Pac. R. R. Co., 314 U.S. 339, 347 (1941).

Within the territory of the original thirteen colonies, after the adoption of the Constitution in 1789 the ultimate fee interest in lands occupied by Indian tribes continued to reside with the states wherein the lands were located, rather The right of the states that comprised the original thirteen colonies to acquire the aboriginal title of a tribe to land located within their borders was known as the "right of preemption."

than with the federal government. 3/

Supreme

Court decisions have recognized this right of preemption in the original thirteen states. Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 670 (1974), Massachusetts v. New York, 271 U.S. 65, 85-86 (1926), Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 584-86 (1823).

Case law is clear that aboriginal title

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 occu-
pancy may be terminated and such lands
fully disposed of by the sovereign

itself without any legally enforceable
obligation to compensate the Indians. 4/

3/ Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).

4/ Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1955).

Moreover, as the Supreme Court has stated, the power of

Congress to extinguish aboriginal title "is supreme. The

manner, method and time of such extinguishment raise political, not justiciable, issues." United States v. Santa Fe Pac.

R.R. Co., 314 U.S. at 347.

On the other hand, where Congress, by treaty or legislation, has recognized that an Indian tribe is to have permanent property rights in land, land subject to such recognition can be taken by the United States only if the just compensation requirements of the fifth amendment are met. While the Indian Counsel Memorandum asserts that the tribal claims in South Carolina and New York involve such recognized title, it appears clear that this is not the case with regard to the claims of the Catawba Tribe in South Carolina, and there is a significant question as to whether this is the case with respect to tribes, such as the Oneida Indian Nation and the Cayuga Tribe, in New York.

B.

The claims of the Catawba Tribe in South Carolina do not involve recognized title.

The assertion that the Catawba Tribe had recognized title to the 144,000 acre tract of land in Rock Hill, South Carolina, that is at issue in the Catawba litigation is grounded on the purported recognition of the Catawba Tribe's rights to such land by Great Britain in the 1760 Treaty of

8

Pine Tree Hill. 5/ There is no claim that Congress ever recognized the Catawba Tribe's rights to this land.

Contrary to the assertion that the actions of a prior sovereign can create recognized title that is binding upon the United States, relevant decisions of the Supreme Court, the Court of Claims, federal district courts, and the Indian Claims Commission are clear that only Congress has the power to create an interest in land on the part of an Indian tribe that is protected by the fifth amendment. See Tee-Hit-Ton

Indians v. United States, 348 U.S. 272 (1955); Strong v. United States, 518 F.2d 556 (Ct. Cl.), cert. denied, 423 U.S. 1015 (1975); Sioux Tribe v. United States, 500 F.2d 458 (Ct. Cl. 1974); Tlingit & Haida Indians v. United States, 389 F.2d 778 (Ct. Cl. 1968); Osceola v. Kuykendall, No. 76-492 (D.D.C. March 11, 1977) (unpublished opinion); Minnesota Chippewa Tribe v. United States, 14 Ind. Cl. Comm.

360 (1964).

A clear statement of this principle is contained in

the Supreme Court's decision in Tee-Hit-Ton:

The question of recognition may be dis-
posed of shortly. Where the Congress by
treaty or other agreement has declared
that thereafter Indians were to hold the

5/

No copy of this treaty has survived to the present day, although reference to this treaty is contained in

Article IV of the 1763 Treaty of Augusta between the Catawba Tribe, the Superintendent of Indian Affairs for Great Britain, and the Governors of the Southern Colonies.

- 9

land permanently, compensation must be
paid for subsequent taking. 6/

There is no particular form for congres-
sional recognition of Indian right of
permanent occupancy. It may be estab-
lished in a variety of ways but there
must be the definite intention by con-
gressional action or authority to accord
legal rights, not merely permissive
occupation. 7/

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. 8/

Numerous decisions of the Court of Claims have echoed

this emphasis that only Congress can confer recognized title on a tribe. For example, in Strong v. United States, 518 F.2d 556 (Ct. Cl.), cert. denied, 423 U.S. 1015 (1975), a number of Indian tribes claimed recognized title to Royce Area 11, which encompassed over two-thirds of Ohio and part

10.

of Indiana, in part on the basis that the United States had assumed the obligations to the tribes that the British Crown had undertaken in the 1768 Treaty of Fort Stanwix. In

rejecting the tribes' claim, the court stated:

Although the claimants need not demonstrate "exclusive use" to show possession of recognized title, they must still prove that Congress intended to recognize that they had the right to permanently use and occupy the land area under scrutiny. This requirement has long been a part of the recognized title doctrine as enunciated by the Commission and the courts. As we stated in Sac & Fox Tribe v. United States, 315 F.2d 896, 900, 161 Ct. cl. 189, 197, cert. denied, 375 U.S. 921, 84 S.Ct. 266, 11 L.Ed. 2d 165 (1963):

Appellants apparently assume that
"recognition" or "acknowledgement"
necessarily follow from an accept-
ance by the United States of the
bare fact that the particular
Indians dwelt or hunted, or claimed
to dwell or hunt, in the area at
that time. But there must be an-
other indispensable element before
recognition is had. The Congress
must affirmatively intend to grant
the right to occupy and use the
land permanently.

Taking a close look at each treaty, we have determined that the claimants have failed to show the necessary Congressional intention to grant them "permanent" rights to Royce Area 11. 9/