At the Whim of the Sovereign: Aboriginal Title Reconsidered

Justice Reed, writing for the majority of the United States Supreme Court in Tee-Hit-Ton Indians v. United States, asserted the view: Every American schoolboy knows that the savage tribes of this continent were deprived of their ancestral ranges by force and that, even when the Indians ceded millions of acres by treaty . . . it was not a sale but the conquerors\u27 will that deprived them of their land. Justice Reed\u27s historical observation was a predicate to the Supreme Court\u27s holding in Tee-Hit-Ton, one of the most significant statements by the Court on the constitutional rights of Native Americans to their aboriginal land, often defined as land upon which a tribe has lived since time immemorial. Relying on his own historical observation and on questionable legal precedent, Justice Reed held in Tee-Hit-Ton that the Indians\u27 title rights, while permitting them to occupy their aboriginal land, did not represent a property right whose extinguishment required compensation under the fifth amendment taking clause. This Article argues that the Tee-Hit-Ton case represents unsound legal reasoning. More important, the Article proposes that because the case presents significant dangers to Indian rights and to future Indian claims, the decision must be reevaluated. The first section of the Article explores the history and foundation of the Tee-Hit-Ton decision, critically analyzes the rationale employed by the Court, and concludes with speculations on the motivation behind the Court\u27s holding. The second section of the Article discusses Tee-Hit-Ton\u27s effect on current litigation involving Indian claims. By addressing the substantive fallacies of the Court\u27s rationale and the potential dangers of future applications of the case, the Article hopes to supply a sufficient basis for future restriction of Tee-Hit-Ton\u27s impact