HERE IS THE QUESTION:
What is the difference between the right of Occupancy and Original Indian original title?
THE ANSWER IS IN THIS TEXT:
Indian Title, or the title which comes from the Right of Occupancy (Original Indian Title is sometimes referred to as the Right of Occupancy), is based on one simple rule; even the Federal Government cannot grant what it does not have. In the United States v. Cramer, Original Indian Title was held valid even though it was not created or recognized by treaty, an act of Congress, or an Executive order. The land in question was claimed by the Right of Occupancy. To further understand the connection between Original Indian Title and the Right of Occupancy (and why they are sometimes used interchangeably), the following quote from the Report of the Commissioner of Indian Affairs for 1872 will help. “Such being the right of the Indian to the soil (Original Indian Title), the United States for more than eighty-five years pursued a uniform course of extinguishing the (Original) Indian title only with the consent of those Indian tribes which were recognized as having claim by reason of occupancy.” For our class, Original Indian Title comes with two rights to property, the first being the right to occupy the land claimed by Original Indian Title. Neither the Secretary of the Interior, Congress, or any other branch of government, has the Constitutional power to disregard the Right of Occupancy and this fact is settled government policy. Congress has recognized Original Indian Title in several state enabling acts (or acts of Congress officially creating/recognizing a state) by requiring the incoming state to disclaim all right and title to lands owned or held by any Indian or Indian tribe. The Supreme Court of the US has also ruled that the purchase of territory from other nations (such as the Treaty of Guadalupe Hidalgo which transferred territory that included current-day California, Nevada, Utah, Arizona, and New Mexico) does not wipe out Original Indian Title. From our class discussion on Discovery, what the Treaty of Guadalupe Hidalgo transferred to the United States was the right to purchase/conquer the lands of that territory from tribes (the Federal Government cannot grant what it does not have). Where no land cession has been freely made by a tribe, Original Indian Title remains unaffected. So, the second right of Original Indian Title is to transfer that title to the sovereign possessing the right of Discovery.
