It is obvious today that the Supreme Court’s decision in Tee-Hit-Ton Indians v. United States (1955) is irreconcilable with liberal democratic values of equality before the law, post-racial justice, and the legacy of Brown v. Board of Education (1954). In Tee-Hit-Ton, the Court ruled that the federal government was not required to compensate the Indian tribe for timber taken from Indian-occupied lands under the Fifth Amendment.
First, Tee-Hit-Ton is difficult to view in light of not only Brown, which expanded the Fourteenth Amendment’s Equal Protection Clause to prohibit state-sanctioned segregated schooling, but also Indian cases of the Marshall Court. Professor Maltz mentions that Worcester v. Georgia (1832) and Mitchel v. United States (1835) guaranteed tribal sovereignty and right of occupancy and possession. Mitchel reads, “[T]heir right of occupancy is considered as sacred as the fee simple of the whites […] [t]he Indian right to the lands as property was not merely of possession, that of alienation was concomitant.”1 So it seems that by following in the vein of Mitchel, Tee-Hit-Ton should have been decided the opposite way because whites’ fee simple land requires compensated takings. What seems to have happened in the time period between was the plenary power doctrine and a judicial reversal toward oppression of Indians. The other factor, as explained by Maltz, is simple politics. By the 1950’s, all of American and most of the world knew and cared about the plight of blacks in the South. They had voting numbers and political clout; the Indian population was small and spread. So while the nation and government praised Brown, nowadays Tee-Hit-Ton is ignored, leading to surprise at racist language such as: “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 in return for blankets, food and trinkets, it was not a sale but the conquerors’ will that deprived them of their land.”2
One could look at the Fifth Amendment, which states: “Nor shall private property be taken for public use, without just compensation.”3 These words in themselves do not seem to be very clear. What exactly constitutes private property—fee simple, trust land? Justice William Douglas and the other two dissenters drew upon the Organic Act of 1884 to show that Congress intended to give the Indians in Alaska protections. This appeal to original legislative intent is rather hilarious, as Senator Plumb of Kansas explained that if the Act did not do what it did, the government would be able to run the Indians off into the sea. Faced with such legislative intent, Douglas was convinced that the Act ossified Indian rights. As to the question of whether that included timber rights, that should be construed in favor of the Indians, because they are a minority in need of protection, which Congress clearly recognized.
One interesting thing is the makeup of the Tee-Hit-Ton Court. Douglas and two liberals dissented; Reed was a social conservative. But Hugo Black, who joined the majority, was a staunch liberal. And John Marshall Harlan II was a moderate. So it is crucial to remember that discrimination against Indians is a bipartisan choice. A bipartisan majority will be needed in the future to right Tee-Hit-Ton and establish justice for Indians whose land is taken.
Endnotes
1. Mitchel v. United States, 34 U.S. (9 Pet.) 711 (1835)
2. Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955)
3. U.S. Constitution. Amend. V. Print.