Miller v. United States

• Decision Date: 18 March 1947
• Docket Number: No. 11067.,11067.
• Citation: 159 F.2d 997
• Parties: MILLER et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

159 F.2d 997 (1947)

MILLER et al. v. UNITED STATES.

No. 11067.

Circuit Court of Appeals, Ninth Circuit.

February 11, 1947.

Rehearing Denied March 18, 1947.

William L. Paul, Jr., of Juneau, Alaska, and Frederick Paul, of Seattle, Wash., for appellants.

David L. Bazelon, Asst. Atty. Gen., Roger P. Marquis and John C. Harrington, Attys., Dept. of Justice, both of Washington, D. C., and R. L. Tollefsen, of Juneau, Alaska, for appellee.

Before GARRECHT, DENMAN, and BONE, Circuit Judges.

GARRECHT, Circuit Judge.

Involving the question of whether or not the appellants have a compensable interest in certain Alaska tidelands under condemnation proceedings, this appeal requires an examination into the nature of the possessory rights of various Tlingit Indians.

On September 19, 1942, pursuant to the Second War Powers Act of March 27, 1942, 56 Stat. 177, c. 199, § 201, 50 U.S.C.A. § 171a, the appellee filed a petition for the condemnation in fee of 10.95 acres, including land under water, for use in the establishment of wharfage facilities in connection with the Juneau Subport of Embarkation.

On April 3, 1944, the appellee filed a third amended petition in which it was alleged that the lands involved were tidelands, title to which was and always had been in the United States, and that, with a "possible exception" not pertinent here, all the improvements were the property of the United States, so that no compensation was due therefor.

In addition to certain named individuals, in the amended petition there were made parties defendant "all persons or parties unknown claiming any right, title, estate or interest in and to the real property described herein."

On July 27, 1944, the appellants filed an "answer and claim" in which some of the allegations of the appellee's petition were admitted and others were denied. Forming part of the appellants' pleading was a section captioned "affirmative defense and claim," the first paragraph of which is important:

"Ever since the year 1867, and from time immemorial prior thereto, said claimants, being Tlingit Indians of Alaska, and their predecessors and successors in lineal consanguinity, under the laws, customs and usages of the Tlingit Indians of Alaska and in conformity with the laws of the United States, during all the times herein mentioned, have been, and now are the aboriginal users and occupants of, and in the exclusive possession of, and entitled to the exclusive possession of the land, submerged land and water described as follows, namely: * * *"

The appellants further alleged that their "said use and occupancy, possession and right of possession" had "not been condemned, expropriated, extinguished, modified, impaired or encumbered by any person, corporation or body politic" until the appellee filed its first petition for condemnation "to a limited portion of said area." They claimed damages totaling $80,000.

The appellee demurred to the answer and claim on the ground that it appeared from the pleading that the appellants had no such interest in the property sought to be condemned as would entitle them to compensation. The court below filed an opinion indicating that the demurrer would be sustained because aboriginal title created no compensable interest against the United States. Later, an order was entered sustaining the demurrer. Since the appellants elected to stand on the allegations of their pleading, the court filed its final judgment, in which it was decreed that none of the appellants should receive any compensation for the taking of the lands, and that the "unencumbered and absolute title in fee simple" to the area "is vested in the United States of America, free and discharged of any and all charges, interests, claims, liens and encumbrances of any kind and character whatsoever."

From that judgment the present appeal was taken.

1. The General Character of Indian Title.

From the earliest reaches of American jurisprudence, the title of the Indians to the lands of their fathers has been regarded at best as one of occupancy only. In the leading case of Johnson v. McIntosh, 8 Wheat. 543, 574, 21 U.S. 543, 574, 5 L.Ed. 681, Mr. Chief Justice Marshall, referring to the aborigines, said:

"They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the rights of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in the possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy.

"The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles."

Half a century later, another Chief Justice — Waite — restated the doctrine in even more emphatic language. In United States v. Cook, 19 Wall. 591, 592, 593, 86 U.S. 591, 592, 22 L.Ed. 210, it was said:

"The right of the Indians in the land from which the logs were taken was that of occupancy alone. They had no power of alienation except to the United States. The fee was in the United States, subject only to this right of occupancy. This is the title by which other Indians hold their lands." (Emphasis supplied)

And another half century later, a third Chief Justice — the one who at this writing presides over the Supreme Court — once again reaffirmed the time-honored principle. In United States v. Alcea Band of Tillamooks, 67 S.Ct. 167, 170, the following language was used:

"It has long been held that by virtue of discovery the title to lands occupied by Indian tribes vested in the sovereign. This title was deemed subject to a right of occupancy in favor of Indian tribes, because of their original and previous possession. It is with the content of this right of occupancy, this original Indian title, that we are concerned here.

"As against any but the sovereign, original Indian title was accorded the protection of complete ownership; but it was vulnerable to affirmative action by the sovereign, which possessed exclusive power to extinguish the right of occupancy at will."

See also Cherokee Nation v. Georgia, 5 Pet. 1, 17, 48, 30 U.S. 1, 17, 48, 8 L.Ed. 5; Beecher v. Wetherby, 95 U.S. 517, 525, 24 L.Ed. 440; Buttz v. Northern Pacific R., 119 U.S. 55, 66, 7 S.Ct. 100, 30 L.Ed. 330.

2. The Indian Right of Occupancy is "Sacred."

While consistently careful to point out that the right of the red man to the lands of his ancestors was "only" that of occupancy, the Supreme Court has with corresponding uniformity insisted that this right, so far as it goes, is "sacred."

We find this transcendental adjective first used in the concurring opinion of Mr. Justice Baldwin in Cherokee Nation v. Georgia, supra, 5 Pet. 1, at page 48, 30 U.S. 1 at page 48, 8 L.Ed. 5:

"Indians have rights of occupancy to their lands, as sacred as the fee-simple, absolute title of the whites. * * *"

In United States v. Cook, supra, 19 Wall. 591, at page 593, 86 U.S. 591 at page 593, 22 L.Ed. 210, Mr. Chief Justice Waite went even a step farther. He held that "the right of the Indians to their occupancy" is not only as sacred as the right of private white landowners to their fee, but that it is "as sacred as that of the United States to the fee," i. e., as sacred as the fee title of the sovereign itself.

See also Mitchel v. United States, 9 Pet. 711, 746, 34 U.S. 711, 746, 9 L.Ed. 283; Minnesota v. Hitchcock, 185 U.S. 373, 389, 22 S.Ct. 650, 46 L.Ed. 954; Shoshone Tribe v. United States, 299 U.S. 476, 497, 57 S.Ct. 244, 81 L.Ed. 360; United States v. Alcea Band of Tillamooks, supra.

In Johnson v. McIntosh, supra, 8 Wheat 543, 574, 585, 588, 592, 603, 21 U.S. 543 at pages 574, 585, 588, 592, 603, 5 L.Ed. 681, Mr. Chief Justice Marshall stressed the point that, wherever the fee simple title might reside, it could be held in Indian land "subject only to the Indian right or title of occupancy."

Like a leitmotif, this quoted phrase runs through the Chief Justice's opinion and through subsequent decisions of the Supreme Court. European grants could "convey a title to the grantees, subject only to the Indian right of occupancy." Either the United States, or the several states, had a clear title to all the lands within the boundary lines described in the treaty ending the Revolutionary War, "subject only to the Indian right of occupancy." The title of the crown was absolute, "subject only to the Indian right of occupancy." The absolute ultimate title has been considered as acquired by discovery, "subject only to the Indian title of occupancy." The claim of government extends to the complete ultimate title, "charged with this right of possession."

See also United States v. Cook, supra, 19 Wall. 591, 592, 593, 86 U.S. 591 at pages 592, 593, 22 L.Ed. 210; Buttz v. Northern Pacific R., supra, 119 U.S. 55 at page 67, 7 S.Ct. 100, 30 L.Ed. 330; Minnesota v. Hitchcock, supra, 185 U.S. 373 at page 389, 22 S.Ct. 650, 46 L.Ed. 954.

3. The Indian Right of Occupancy is Compensable.

It would be indulgence in pious and high-sounding but empty generalizations to say that the Indian right to occupancy is "sacred," and at the same time to refuse to grant compensation to Indian possessors when their land is taken away from them under condemnation proceedings.

The Supreme Court has countenanced no such inconsistency. In Minnesota v. Hitchcock, supra, 185 U.S. 373 at page 389, 22 S.Ct. 650, 656, 46 L.Ed. 954, the Court said:

"At...