PLASTERERS AND CEMENT MASONS v. TEXACO, INC.
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414 U.S. 935 (1973)
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U.S. Supreme Court
PLASTERERS AND CEMENT MASONS v. TEXACO, INC. , 414 U.S. 935 (1973)
414 U.S. 935
Gordon MONTGOMERY et al.
Ross William MONTGOMERY
Supreme Court of the United States
October 15, 1973
On petitions for writs of certiorari to the United States Court of Appeals for the Ninth Circuit.
The petitions for writs of certiorari are denied.
Mr. Justice DOUGLAS, dissenting.
Petitioners are members of the Pit River Indian Nation who, in order to construct Indian-style buildings, felled one Ponderosa pine growing on the public lands of the United States, but within the original boundaries of the lands occupied by their ancestors. They were prosecuted under 18 U. S.C. 1852, which provides in relevant part:
- 'Whoever cuts . . . timber growing on the public lands of the United States . . .
* * * * *
- 'Shall be fined not more than $1,000 or imprisoned not more than one year, or both.
- 'This section shall not prevent any miner or agriculturist from clearing his land in the ordinary working of his mining claim, or in the preparation of his farm for tillage, or from taking the timber
necessary to support his improvements, or the taking of timber for the use of the United States; nor shall it interfere with or take away any right or privilege under any existing law of the United States to cut or remove timber from any public lands.' (Emphasis added.)
In their defense, petitioners claimed that the original 'aboriginal title' or 'Indian title' to their ancestral tribal lands constituted a right recognized by existing law. The Court of Appeals dismissed this claim, reasoning that the specific exemptions granted miners, farmers, and the United States negatived a reading of the 'existing law' clause which would include ancestral title, and noting that there was no 'relevant authority' for the defense raised by petitioners.
There is, of course, no 'relevant authority' for petitioners' claim, because the issue of whether the 'existing law' clause of 18 U.S.C. 1852 reaches aboriginal or Indian title has not been previously litigated.
But this Court has often held that the occupation of property by Indians' ancestors gives rise to Indian title, which, though not a property interest subject to Fifth Amendment protections, encompasses the right to occupancy and use-the right to fish, to hunt, and to cut timber sufficient for use on the land. See, e. g., Tee-Hit-Ton v. United States, 348 U.S. 272, 279; United States v. Santa Fe Pacific R. Co., 314 U.S. 339, 345; United States v. Cook, 19 Wall. 591, 86 U.S. 591, 593-594; Johnson v. M'Intosh, 8 Wheat. 543, 21 U.S. 543, 574, 584, 591 ( Marshall, C. J.). This, I think, is a right recognized by the 'existing law' of the United States.
A question strikingly similar to the issue in this case arose in Cramer v. United States, 261 U.S. 219, where a land grant by the United States to a railroad excepted lands 'reserved . . . or otherwise disposed of.' Some [414 U.S. 935 , 937]