Landownership comprises

1. Landownership comprises • A spatial unit • Legal description • Jurisdiction • A behavioral unit – legal rights in that unit possessed • By individuals • By corporations • By governments Both of these attributes have evolved over time Some make no "sense" in the current setting They can only be appreciated with reference to an appropriate historical setting

2. Organization of Space -  Jurisdictional units (governments) • Organized spatially - horizontally & vertically • Organized temporally  • Historically • Increasing number  of jurisdictions • Increasing power of jurisdictions • Decreasing size of jurisdictions • Fragmentation of the land surface  • Decreasing personal freedom!

3. The Evolution of Minnesota

4. “Start” to “Finish”

5. “Start” to “Finish”

6. Basic Resources • Linklater, Andro. Measuring America. How an untamed wilderness shaped the United States and fulfilled the promise of democracy (Walker Publishing Co. 2002) • Linklater, Andro. The Fabric of America. How our borders and boundaries shaped the country and forged our national identity (Walker Publishing Co. 2007) • Rohrbough Malcolm J. The Trans-Appalachian Frontier. People, Societies, and Institutions, 1775-1850 (Wadsworth Publishing Co. 1990) • Rohrbough Malcolm J. The Land Office Business. The Settlement and Administration of American Public Lands. 1789-1837 (Wadsworth Publishing Co. 1990)

7. Federal Policy • In the eighteenth & nineteenth centuries individuals migrated into a largely uninhabited continental interior in response to federal policy aimed at creating and promoting private landownership

8. Federal Policy • The policy rested on two features • A land alienation process in which the federal government created landowners by conveying titles to individuals, corporations, and states • Law that created the conditions for landownership to exist

11. Basic Processes • Acquiring jurisdiction • Creating a national government • Creating jurisdictions to guarantee titles to surface - creating states and ceding some jurisdiction to them • Acquiring title – extinguishing aboriginal occupancy and use rights • Creating a system of land administration • Subdividing the land surface - creating a legal description • Conveying title to the surface - creating landowners

12. Treaty of Paris 1783

13. Original State Claims

14. The Land Ordinance, 1785 Established two general principles Lands north and west of the River Ohio ceded by Native Americana would be subdivided in an orderly manner The United States would convey title to these lands to individuals and corporations Thomas Jefferson The Northwest Ordinance, 1787 Jurisdiction over individuals and title to lands in the Northwest Territory would be vested in a national government Provided individuals who settled in the Territory with a government, hence some guarantee of their rights Established how the Northwest Territory would be divided - into sovereign states The “model” of early governments in 31 states

15. The First Jurisdictions in the New Republic The Northwest Territory, 1787 Proposed by Jefferson, 1784

17. Territorial Evolution of the United States (Wikipedia)

18. 1814

19. 1830

21. 1836

22. 1838

23. Evolution of Minnesota • Organic Act – establishes a Territory • Enabling Act – enables residents of a Territory to write a constitution • Admission Act – Territory becomes a state with the same rights as the original states

24. 1844

25. 1850 showing Minnesota Territory

26. 1856

27. First Statutes in Minnesota Territory

28. First Counties in Minnesota Territory

29. Counties in 1849

30. 1852

31. 1857

32. 1857

33. 1858

34. 1862

35. 1873

36. Basic Diagram

37. Treaties • Representatives of the United States and various American Indian bands negotiated 370 treaties of peace throughout  the country from 1787 to 1871 - most involved land cessions • After 1850s they also involved reservations • They were not neat expressions of public intent and their language has become very contentious • Reflected ambiguous and contradictory principles and practices that characterized the relationship between American Indians and non-Indians • Reflected the ambiguous and contradictory principles and practices that characterized federal land policy designed to promote and subsidize the colonization of the United States by landowners

38. Treaties • The aboriginal title – occupancy and use rights – in a particular area were extinguished through treaty • Usufructuary rights described in treaties – bands capable of ceding them and retaining them • Treaties, based upon the federal-Indian relationships that existed when each was negotiated and signed, are key to important questions • the nature of American Indian sovereignty • the nature of land ownership and land use on reservations • the nature of usufructuary rights beyond the limits of the reservation boundary • The language of each treaty has subsequently been examined to interpret what the Indian signatories would have understood the treaty to mean

39. American Indian Treaties • Have become subject of intense scrutiny – Indian Claims Commission • Historians, linguists, and other experts have attempted to understand what treaty language written during that time period means – ethnohistorians • The courts have established several canons of construction when interpreting treaties • treaties must be construed as the American Indians understood them • doubts concerning the meaning of treaties must be resolved in favor of the American Indians • explicit language or clear Congressional intent is required to abrogate American Indian treaty rights • ambiguously perhaps – plain meaning cannot be ignored!

40. In Jones v. Meehan 175 U.S. 1 (1899) • “the negotiations for the treaty are conducted, on the part of the United States, an enlightened and powerful nation, by representatives skilled in diplomacy, masters of a written language, understanding the modes and forms of creating the various technical estates known to their law, and assisted by an interpreter employed by themselves; that the treaty is drawn up by them and in their own language; that the Indians, on the other hand, are a weak and dependent people, who have no written language and are wholly unfamiliar with all forms of legal expression, and whose only knowledge of the terms in which the treaty is framed is that imparted to them by the interpreter employed by the United States; and that the treaty must therefore be construed . . . in the sense in which they would naturally be understood by the Indians”

41. Canons of Construction • Worcester v. Georgia 31 U.S. (6 Pet.) 515 (1832) • In a concurring opinion in that case, Justice M'Lean wrote • "[t]he language used in treaties with the Indians should never be construed to their prejudice," and "[h]ow the words of the treaty were understood by this unlettered people, rather than their critical meaning, should form the rule of construction" • His opinion highlighted the disadvantaged bargaining position of the "unlettered" Indians in negotiating treaties with the United States

42. Land Cessions

44. General References • Indian Affairs: Laws and Treaties (University of Oklahoma) • Indian Land Cessions in the United States 1784-1894 (Library of Congress) • Indian Land Cessions in the United States (Native American Nations) • Native Americans (UMN Law School) • Selected Resources for American Indian Studies (UMN) • Minnesota Tribal Government (Minnesota North Star) • Indians, Indian Tribes, and State Government(Minnesota House ResearchDepartment)

45. Minnesota et al v. Mille Lacs Band of Chippewa Indians et al. • In 1837, the United States entered into a Treaty with several Bands of Chippewa Indians • Under the terms of this Treaty, the Indians ceded land in present-day Wisconsin and Minnesota to the United States, and the United States guaranteed to the Indians certain hunting, fishing, and gathering rights on the ceded land

46. Minnesota et al v. Mille Lacs Band of Chippewa Indians et al. • We must decide whether the Chippewa Indians retain these usufructuary rights today • First was the matter of presidential authority. In 1850, President Zachary Taylor revoked Native American harvesting privileges and ordered their removal from the state of Minnesota. Several years later, however, the 1850 bill was revoked because of its political motivation. Lower courts have sided with the Ojibwe, deciding that since Taylor's bill was revoked, treaty rights remain. • When Minnesota became a state in 1858 the treaty became invalid, relinquishing all control of the natural resources to the state itself. • The final question involved an 1855 treaty in which the Ojibwe ceded the remainder of their land to the state • After an examination of the historical record, we conclude that the Chippewa retain the usufructuary rights guaranteed to them under the 1837 Treaty • The Mille Lacs Controversy (Squires)

47. Mille Lacs Reservation • County of Mille Lacs et al. v. Melanie Benjamin et al. (District Court 262 F. Supp. 2d 990) • The County asked the court to declare the Mille Lacs reservation established in 1854 to be disestablished • The court refused to do so • (A more pertinent issue is whether the original reservation included Mille Lacs itself) • Eighth Circuit Court Opinion (Court of Appeals) • In Re Mille Lacs Wastewater Treatment Facility • Proper Economic Resource Management