Fifth Amendment Takings

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The Tee-Hit-Ton Decision

Prior to 1955, some confusion had arisen as to whether the government's taking of aboriginal title (which had never been recognized by Congress and therefore never converted into recognized title) was compensable under the Fifth Amendment. The Supreme Court’s Tee-Hit-Ton decision conclusively resolved that issue by ruling that aboriginal title was not a vested property interest within the meaning of the Fifth Amendment.

Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955) concerned the Fifth Amendment taking claim of the Tee-Hit-Tons, an identifiable group of American Indians residing in Alaska, filed in the United States Court of Claims under the Indian Tucker Act (28 U.S.C.  1505). The plaintiffs alleged that the United States had taken timber from certain Alaska lands to which plaintiffs asserted aboriginal (also known as "original Indian") title. The Court stressed that "original Indian title" amounted to "mere possession not specifically recognized as ownership by Congress." 348 U.S. at 279. The Court declared that aboriginal title is not a “property right”, but rather a "right of occupancy [which] may be terminated and such lands disposed of by the sovereign itself without any legally enforceable obligation to compensate the Indians. " Id. The Court held that "Indian occupancy, not specifically recognized as ownership by action of Congress, may be extinguished by the Government without compensation." Id. at 288-89

The Fort Berthold Decision

In 1968, the Court of Claims issued a landmark ICCA decision establishing a test for whether a Fifth Amendment taking of tribal trust land has occurred. Three Affiliated Tribes of the Fort Berthold Reservation v. United States, 182 Ct Cl. 543, 553, 390 F. 2d 686, 691 (1968). The Court observed that vis-a-vis the Indians, Congress "wears two hats":

  • it either acts as a trustee and exercises its plenary power for their benefit, or
  • acts as a sovereign exercising its power of eminent domain, but it cannot wear both hats simultaneously. 390 F. 2d at 691.

The Court then held as follows:

* * * * Where Congress makes a good faith effort to give the Indians the full value of the land and thus merely transmutes the property from land to money, there is no taking. This is a mere substitution of assets or change of form and is a traditional function of a trustee. * * * *  Id.

In United States v. Sioux Nation of Indians, 448 U.S. 371 (1980), the Court ruled that the 1877 statute (approving an 1876 agreement with the Tribe to cede the Black Hills portion of the Great Sioux Reservation to the United States which directly violated the terms of the 1868 treaty establishing the Reservation) had effected a Fifth Amendment taking of the Black Hills. The Court adopted the 1968 Fort Berthold test to determine whether a Fifth Amendment taking had occurred and awarded the Tribe $17 million for the 1877 fair market value of the Black Hills together with 5% simple interest thereon amounting to $88 million for a total award of $105 million — the largest judgment ever entered against the United States under the ICCA.

The Inupiat Trespass Claim Decision

In 1982, the Court of Claims ruled upon the merits of a suit by a recognized tribe of Eskimos to recover just compensation for the Fifth Amendment taking of certain claims through the passage of the Alaska Native Claims Settlement Act of 1971, ( Pub. L. No. 92-203, Act of December 18, 1971, 85 Stat. 688, codified at 43 U.S.C. ' 1601, et seq.), one of which was a trespass claim. Inupiat Community of the Arctic Slope v. United States, 230 Ct. Cl. 647, 680 F.2d 122 (1982). In finding against the Tribe, the Court ruled, inter alia, that the Settlement Act extinguished all claims for trespass on lands held by aboriginal title, but that extinguishment of such claims for trespass was not compensable under the Fifth Amendment because the claims were premised on aboriginal title which is not a vested property interest. 230 Ct. Cl. at 654-58, 680 F.2d at 128-30.

The Cherokee McClellan-Kerr Decision

In 1987, another landmark Fifth Amendment takings decision was issued. United States v. Cherokee Nation of Oklahoma, 480 U.S. 700 (1987). The Cherokee Nation alleged that the McClellan-Kerr Project (construction of a navigable channel in the Arkansas Riverbed) effected a Fifth Amendment taking of the Tribe's mineral interests in the Arkansas Riverbed. The United States argued that its navigational servitude precluded liability for a Fifth Amendment taking and the Supreme Court agreed. The Court also rejected the Cherokee Nation's argument that "the fiduciary obligations of the United States elevate the government's actions into a taking." The Court responded that "the tribal interests at issue here simply do not include the right to be free from the navigational servitude," because exercise of the servitude was not an invasion of the Tribe's property rights in the Arkansas Riverbed. 480 U.S. at 708.

The United Nuclear Decision

In 1990, the Federal Circuit ruled on a rather unique Fifth Amendment taking claim involving two uranium mining leases between the Navajo Nation and a mining company authorizing mining on the Navajo Reservation. United Nuclear Corp. v. United States, 912 F.2d 1432 (Fed Cir. 1990). Under the terms of both leases, the failure of United Nuclear to commence mining operations within a specified time period would operate to terminate the leases.

Under Interior’s regulations, United Nuclear was required to submit a proposed mining plan for Secretarial approval before it could begin actual mining operations. Although the proposed plan met all applicable regulatory requirements, the Secretary refused to approve the plan until the Tribe approved it. After a four-year period during which the Tribe refused to approve the plan, the time specified for the commencement of mining activities lapsed and the leases automatically terminated. Stressing that Interior’s regulations did not require tribal approval of the plan, the Court of Appeals for the Federal Circuit held that the government had taken United Nuclear’s leasehold interest within the meaning of the Fifth Amendment.

 

Updated May 12, 2015

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