Sovereign Property Rights Flashcards
What are Tribal Treaty Rights?
- Treaties made between Native sovereigns and US which guarantee rights to fishing, land, etc.
- Strongest legal rights the Native tribes hold
What was the courts role in Europeans gaining full title?
- Court calls it the “actual state of things”
- Court can’t deny the role of conquest in its role in creating the courts
How could the European’s gain full title?
They have to take action to acquire it by purchase or conquest
How did the Discovery Doctrine diminish Native title?
- Discovery Doctrine is that whichever European Nation “discovered” the land owns it
- Supreme title rights come from God-given power over non Christian people who have no rights (Requerimento used as justification)
What was Marshalls view of Native property ownership?
The Native’s have “right of occupancy,” but not supreme title
Washington v. Washington State Commercial Passenger Fishing Vessel Ass’n
- Native treaties of 1854-55 guaranteed “right of taking fish at all usual and accustomed grounds and stations”
- Court held that treaty guaranteed amount of fish for a “moderate living,” not just access
- Factors considered in this treaty are access, allocation, and habitat protection
- Fishing rights treated like an easement
What is the Public Trust Doctrine?
- Common law practice going all the way back to ancient Rome
- Doctrine makes the government trustee to manage natural assets for the public beneficiary
- Generally applied to submerged lands, water, wildlife, air, and public lands
What is the framework for the Public Trust Doctrine?
Identify:
- Trustee (usually legislature)
- Beneficiary (usually the public)
- Asset
- Fiduciary Duty (Substantive: alienation, protection of assets, recovering natural resource damages; or Procedural)
- Remedy
What is Chain of Title?
-“You cannot give away what you don’t have. You cannot lose what you never had in the first place.”
What is Native Title and the Discovery Doctrine?
- Tribes have the Right of Occupancy.
- Federal government has the Right of Discovery.
- Tribes’ property rights are inalienable.
- Where tribes cede land to the federal government, the title become complete
What is Right of Occupancy?
-The right to occupy, posses, and use the land forever
What is Right of Discovery?
-The right to extinguish native occupancy by purchase or conquest
What are alienable Native property rights?
-The tribes can only transfer land with the permission of the federal government, otherwise the grant is void. This means that private persons cannot purchase native land
What is supreme title?
- When the title becomes complete the federal government can sell or grant the land to others
- Occupancy + “Discovery” = full title
Illinois Central Railroad
- The legislature breached its obligation to the people by conveying the land
- They didn’t have authority to make the grants, so the land is revoked
- The government can’t cause a substantial impairment to public trust assets
