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Unformatted text preview: CHAPTER 2: HISTORY OF PUBLIC LAND LAW Acquisition of the Public Domain Johnson v. MIntosh (USSC 1823) (Discovery Doctrine) o Nations claim land they discover Right against all other nations to acquire lands from Indians. o Creates title subject to Indian right of occupancy Indian right of occupancy not protected by 5 th A Taking (use right) ( Tee-Hit-Ton (1955 USSC)) Reservations are recognized property rights o Indian title must be cleared before disposal No transfer of title from Indians to private party w/o US consent Above rule codified in Indian Trade and Intercourse Act (1790) E.g. USSC held invalid a purchase made by the state of NY of Indian title lands. ( Oneida 1985) Disposition of the Public Domain Early Public Lands Policy Issues o Land Ordinance of 1785 Rectangular Survey System Surveyed land to be auctioned of w/ 16 of each township reserved for public education o Property Clause (Article IV, 3) Congress shall have power to dispose of and make all needful rules and regs respecting U.S. property US may retain ownership of lands under Property Clause ( U.S. v. Gratiot (1840)) It is constitutional for US to lease public lands and resources. Statehood and Equal Footing o 1) Navigable for Title lands Rule : New states receive land underlying navigable waters under the = footing doctrine ( Pollard v. Hagan (USSC 1845)) Navigable for title test (Daniel Ball): Navigable for title waters are those which in their natural/ordinary condition are used, or are susceptible of being used, as highways of commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water. However, under the commerce clause, the US has power to regulate navigable waters ( AZ v. CA (USSC 1963)) Rule : States succeed to ownership of submerged lands subject to the ebb and flow of tides ( Phillips Petroleum v. Mississippi (USSC 1988)) Exception to Pollard : US may reserve the beds of navigable waters for federal purposes prior to statehood, but reservation must be EXPRESS ( UT Division of State Lands v. US (1987)) NOTE: Lands underlying navigable-for-title waters are subject to a public trust . These lands cannot be sold or transferred out of state ownership, except in de minimis amounts. ( Illinois Central RR v. Illinois (USSC 1892)) o 2) Express Land Grants in Statehood Acts 1 a) In-Place Grants : grants of specified numbered sections of lands #s depended on the state (most states received 2 sections; AZ & UT got 4) Usually for schools Actual location not determined until land was surveyed. in place grants were not automatic. Lands could only be obtained if states went through the patenting process....
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