Duhaime's Law Dictionary

Indian Title Definition:

A right of exclusive occupancy in land by Indians.

Related Terms: Aboriginal Title, Indian

flag of CanadaIn 1973, Justice Judson of Canada's Supreme Court wrote this in Calder v BC:

"Indian title in British Columbia cannot owe its origin to the Proclamation of 1763, the fact is that when the settlers came, the Indians were there, organized in societies and occupying the land as their forefathers had done for centuries. This is what Indian title means and it does not help one in the solution of this problem to call it a personal or usufructuary right. What they are asserting in this action is that they had a right to continue to live on their lands as their forefathers had lived and that this right has never been lawfully extinguished. There can be no question that this right was dependent on the goodwill of the Sovereign".

A decade later, in Guerin v the Queen, Justice Dickson of the same court used these words:

"Indians have a legal right to occupy and possess certain lands, the ultimate title to which is in the Crown. While their interest does not, strictly speaking, amount to beneficial ownership, neither is its nature completely exhausted by the concept of a personal right. It is true that the sui generis interest which the Indians have in the land is personal in the sense that it cannot be transferred to a grantee, but it is also true, as will presently appear, that the interest gives rise upon surrender to a distinctive fiduciary obligation on the part of the Crown to deal with the land for the benefit of the surrendering Indians. These two aspects of Indian title go together, since the Crown's original purpose in declaring the Indians' interest to be inalienable otherwise than to the Crown was to facilitate the Crown's ability to represent the Indians in dealings with third parties. The nature of the Indians' interest is therefore best characterized by its general inalienability, coupled with the fact that the Crown is under an obligation to deal with the land on the Indians' behalf when the interest is surrendered. Any description of Indian title which goes beyond these two features is both unnecessary and potentially misleading."

In Hamlet of Baker Lake v Canada, Justice Mahoney wrote:

"The elements which the plaintiffs must prove to establish an aboriginal title cognizable at common law are: 1. That they and their ancestors were members of an organized society. 2. That the organized society occupied the specific territory over which they assert the aboriginal title. 3. That the occupation was to the exclusion of other organized societies. 4. That the occupation was an established fact at the time sovereignty was asserted by England."

flag of USAIn American jurisprudence, circa 1945, Northwestern Bands of Shoshone Indians v US, Justice Reed of the Supreme Court of the United States opined:

"Even where a reservation is created for the maintenance of Indians, their right amounts to nothing more than a treaty right of occupancy. Prior to the creation of any such area, formally acknowledged by the United States as subject to such right of Indian occupancy, a certain nation, tribe or band of Indians may have claimed the right because of immemorial occupancy to roam certain territory to the exclusion of any other Indians and in contradistinction to the custom of the early nomads to wander at will in the search for food. This claim has come to be known as Indian title and is likewise often spoken of as the right of occupancy."

Consider, also, these words of Justice Mansfield in Oneida:

"[T]itle to the lands occupied by Indians when the colonists arrived became vested in the sovereign — first the discovering European nation and later the original States and the United States — a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act.

"This right of occupancy which the Indians retain until validly extinguished has been variously termed aboriginal title, unrecognized title, original Indian title, or simply Indian title."

In US v Gemmill, Justice of the wrote (adopting in part from US v Santa Fe):

"Indian title is a permissive right of occupancy granted by the federal government to the aboriginal possessors of the land. It is mere possession not specifically recognized as ownership and may be extinguished by the federal government at any time. Although an extinguishment cannot be lightly implied in view of the avowed solicitude of the Federal Government for the welfare of its Indian wards, when the Government clearly intends to extinguish Indian title the courts will not inquire into the means or propriety of the action.

"Extinguishment of Indian title based on aboriginal possession is of course a different matter. The power of Congress in that regard is supreme. The manner, method and time of such extinguishment raise political not justiciable issues....

"[T]he exclusive right of the United States to extinguish Indian title has never been doubted. And whether it be done by treaty, by the sword, by purchase, by the exercise of complete dominion adverse to the right of occupancy, or otherwise, its justness is not open to inquiry in the courts."


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