Cruz and Europa v. Secretary of Environment and Natural Resources

[153] Id. at 700. [154] 42 C.J.S., Indians, Sec. 29 [1944 ed.]. [155] There are 3 kinds of Indian reservations: (a) those created by treaties prior to 1871; (b) those created by acts of Congress since 1871; and (c) those made by Executive Orders where the President has set apart public lands for the use of the Indians in order to keep them within a certain territory-- 42 C.J.S., Indians, Sec. 29 citing Sioux Tribe of Indians v. U.S. 94 Ct. Cl. 150, 170, certiorari granted 62 S. Ct. 631, 315 U.S. 790, 86 L. Ed. 1194, affirmed 62 S. Ct. 1095, 316 U.S. 317, 86 L. Ed. 1501. It is observed that the first two kinds may include lands possessed by aboriginal title. The last kind covers Indian reservations proper. Until 1871, Indian tribes were recognized by the United States as possessing the attributes of nations to the extent that treaties were made with them. In that year, however, Congress, by statute, declared its intention thereafter to make the Indian tribes amenable directly to the power and authority of the United States by the immediate exercise of its legislative power over them, instead of by treaty. Since then, Indian affairs have been regulated by acts if Congress and by contracts with the Indian tribes practically amounting to treaties-- 41 Am Jur 2d, Indians, Sec. 55 [1995 ed]. [156] 42 C.J.S. Indians, Sec. 28 [1944 ed.]. [157] Ibid.; see also U.S. v. Santa Fe Pac. R. Co., Ariz., 62 S. Ct. 248, 314 U.S. 339, 86 L. Ed. 260 [1941]. [158] Ibid. [159] 8 Wheat 543, 5 L. Ed. 681 [1823]. [160] Id. at 680. [161] Id. at 689. [162] Id. at 696; see also 41 ALR Fed 425, Annotation: Proof and Extinguishment of Aboriginal Title to Indian Lands, Sec. 2[a] [1979]. [163] Buttz v. Northern Pac.R. Co., Dak., 7 S. Ct. 100, 119 U.S. 55, 30 L. Ed. 330, 335 [1886]. [164] Lynch, Native Title, supra, at 293-294; Cohen, Original Indian Title, 32 Minn. L.R. 48-49 [1947]. [165] 6 Pet 515, 8 L.Ed. 483 [1832]. [166] Id. at 499. [167] Id. at 500. [168] Id. at 501. [169] The title of the government to Indian lands, the naked fee, is a sovereign title, the government having no landlord from whom it holds the fee-- Shoshone Tribe of Indians of Wind River Reservation in Wyoming v. U.S., 85 Ct. Cl. 331, certiorari granted U.S. v. Shoshone Tribe of Indians, 58 S. Ct. 609, 303 U.S. 629, 82 L. Ed. 1090, affirmed 58 S. Ct. 794, 304 U.S. 111, 82 L. Ed. 1213, 1218-1219 [1938].