414 U.S. 935
Gordon MONTGOMERY et al.
Ross William MONTGOMERY
Supreme Court of the United States
October 15, 1973
On petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit.
The petitions for writs of certiorari are denied.
Mr. Justice DOUGLAS, dissenting.
Petitioners are members of the Pit River Indian Nation who, in order to construct Indian-style buildings, felled one Ponderosa pine growing on the public lands of the United States, but within the original boundaries of the lands occupied by their ancestors. They were prosecuted under 18 U. S.C. 1852, which provides in relevant part:
* * * * *
In their defense, petitioners claimed that the original 'aboriginal title' or 'Indian title' to their ancestral tribal lands constituted a right recognized by existing law. The Court of Appeals dismissed this claim, reasoning that the specific exemptions granted miners, farmers, and the United States negatived a reading of the 'existing law' clause which would include ancestral title, and noting that there was no 'relevant authority' for the defense raised by petitioners.
There is, of course, no 'relevant authority' for petitioners' claim, because the issue of whether the 'existing law' clause of 18 U.S.C. 1852 reaches aboriginal or Indian title has not been previously litigated.
But this Court has often held that the occupation of property by Indians' ancestors gives rise to Indian title, which, though not a property interest subject to Fifth Amendment protections, encompasses the right to occupancy and use-the right to fish, to hunt, and to cut timber sufficient for use on the land. See, e. g., Tee-Hit-Ton v. United States, 348 U.S. 272, 279 ; United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345 ; United States v. Cook, 19 Wall. 591, 86 U.S. 591, 593 -594; Johnson v. M'Intosh, 8 Wheat. 543, 21 U.S. 543, 574 , 584, 591 ( Marshall, C. J.). This, I think, is a right recognized by the 'existing law' of the United States.
A question strikingly similar to the issue in this case arose in Cramer v. United States, 261 U.S. 219 , where a land grant by the United States to a railroad excepted lands 'reserved . . . or otherwise disposed of.' Some [414 U.S. 935 , 937] of the land encompassed by the grant was occupied by three individual Indians. The United States, on behalf of the Indians, argued that the words of the exceptions clause, though obviously general, nonetheless encompassed the right of occupancy of the Indians. The Court, finding the occupancy of the individual Indians closely akin to the 'original nomadic tribal occupancy' relied on by petitioners in this case, agreed with the United States because '[u]nqustionably it has been the policy of the Federal Government from the beginning to respect the Indian right of occupancy.' Id., at 227. The Court held that the 'fact that such right of occupancy finds no recognition in any statute or other formal governmental action is not conclusive. The right, under the circumstances here disclosed, flows from a settled governmental policy.' Id., at 229.
As the Court stated in 1912,
I see no reason why, in our time, that rule of construction should be nullified in the absence of any affirmative showing that Congress chose not to recognize aboriginal Indian title as a defense to 18 U.S.C. 1852. Considering the solicitude of the Federal Government for Indian title in the past, the Court of Appeals arguably was in error in rejecting the claims of the petitioners [414 U.S. 935 , 938] when it could find no 'relevant authority.' I would take the case and put it down for oral argument.