Indigenous lands: US Supreme Court decided the opposite of what Brazilian justice did

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In a landmark ruling last month, the Brazilian Supreme Court decided that indigenous communities have rights to land, despite lacking any formal legal title to them. The court recognized the right to land based solely on ancestral or aboriginal claims. That other Brazilians inhabit and are using the land today under established legal rules is irrelevant, the court concluded, because the indigenous people had historically occupied the land before the arrival of Europeans. This is true of the entirety of Brazil, as it is in the United States. In 1955, however, the United States Supreme Court decided a case that reached the opposite result, thereby preserving the sovereignty of the United States.

The U.S. case involved a clan of indigenous people, known as the Tee-Hit-Ton, that had inhabited an area near the town of Wrangell in southeastern Alaska for millennia. The Tee-Hit-Ton never obtained legal title to the land they inhabited from any external government. They were subject to minimal control by the Russian Empire before the land was sold to the United States in 1867. In 1907, the U.S. government established the area as a national forest preserve. The Tee-Hit-Ton, numbering less than one hundred, continued to live in the area. During World War II, however, Congress authorized the cutting of trees in the area for war materiel, and in 1951, signed a lease with a company to exploit the region’s resources. The Tee-Hit-Ton sued, alleging the trees (and the land) belonged to them.

The Tee-Hit-Ton claimed that at the time that the United States acquired Alaska from Russia in 1867, they possessed aboriginal title to the land. This was based in part on the history of the area. In 1821, Alexander I, the Czar of Russia, issued an edict to the Russian American Company to “not forcibly extend possession of the Company in regions inhabited by tribes” and to limit interactions with the tribes to “exchange, by mutual consent, of European wares for fur and Native products.” The law that created the Alaska Territory in 1884 noted that “the Indians … shall not be disturbed of any lands actually in their use or occupation or now claimed by them.” The natives had a strong claim to the land.

In 1955, however, the United States Supreme Court decided a case that reached the opposite result, thereby preserving the sovereignty of the United States

But the U.S. Supreme Court rejected the theory that indigenous people, like the Tee-Hit-Ton, can claim rights to land based on ancestral claims alone. Under U.S. law, indigenous people were mere occupants of the land, with only the rights given to them by the government, which is sovereign. The court noted that “[t]he American people have compassion for the descendants of those Indians who were deprived of their [land] by the drive of civilization,” but that having the Indians “share the benefits of our society,” was a matter of “grace, not … legal liability.” In other words, the U.S. government would recognize title to land only if it were granted by the U.S. government. Rights to land under U.S. law arise from U.S. law, not the state of nature or human rights or the fact that people once lived there.

This result did not leave indigenous people without claims to land. Congress can give whatever land it wants to indigenous people, so long as it compensates those with legal title. If Congress does give indigenous people rights to land, and then takes it from them, it must pay, as required by the Constitution. (The U.S. has done this, paying many billions of dollars to indigenous people.)

All that the Tee-Hit-Ton case decided is that the court cannot take land and give it to indigenous people based on nothing more than an argument that they were here first. The logic is simple: the indigenous people once occupied all of America and therefore a claim based solely on ancestral or aboriginal title could mean endless litigation and ultimately an end to the nation.

The case before the Brazilian Supreme Court was very similar to that in Alaska. It stemmed from a dispute in the Santa Catarina state in which the Xokleng people claimed that they were wrongly evicted from their ancestral land by farmers. The court had to decide between two legal theories. Under one, called the “time frame” theory, the date to determine who owned the land was 1988, when the current Brazilian government was created by the Federal Constitution. The Xokleng did not inhabit the land in 1988, having been displaced decades earlier, and therefore would have no claim to it. Under the other approach, called the “indigenato” theory, the Xokleng would have title to the land because they once inhabited the land. This is the theory rejected by the U.S. Supreme Court but adopted by the Brazilian Supreme Court last month.

Conflicting rights to land between current and former indigenous occupants are difficult questions that cannot be reduced to simple arguments, like “they were here first.” Indigenous communities are sympathetic and often in need of help. But broad indigenous rights risk upsetting settled expectations and investments. Current landowners have invested time and money in the land, all of which may be for nothing.

In addition, legal rules change incentives, often with unintended consequences. This ruling gives incentives for natives to claim lands, even if they have tenuous connections to them. All of Brazil is a target for such claims. On the other side of the coin, if farmers are compensated when land is given back to natives, they will have incentives to stake claims in new areas that might earn them a windfall when given back.

The biggest problem with the Brazilian Supreme Court’s decision is that it tried to resolve this complicated issue. By ruling against ancestral title, the U.S. Supreme Court left questions of who owns what land and how best to treat indigenous communities to the legislature. With the stakes so high and the risks so great, it is Americans or Brazilians that must decide these questions, not a few unelected judges.