On December 8, 1941, the Supreme Court issued a decision in United States v. Santa Fe Pacific R. Co. that answered key questions about the extent of aboriginal title and helped set a standard for proving such title. According to one government lawyer, it was “one of the most important cases ever to reach the Supreme Court in the history of our Federal Indian law.” The case arose from a dispute about land claimed by both the Hualapai Indians and the Santa Fe Pacific Railroad. The opinion held that lands included in an 1866 grant to the Atlantic & Pacific Railroad, a predecessor of Santa Fe Pacific, were subject to any existing Hualapai occupancy rights until a voluntary cession had occurred and laid out the parameters of when Indian title would exist. The decision was the culmination, though not the end, of a multidecade effort by the Hualapai Indians and their allies to secure title and control of their ancestral lands within the Hualapai Indian Reservation. Though Indian or aboriginal title was an established concept, one that had been recognized by the courts in several cases in the early nineteenth century, exactly when it applied and was extinguished was a source of conflict in the twentieth century. The Hualapai’s claim was unusual in some ways, most noticeably in that it was against a private company, but it also came at a time when many Native Americans were making land claims against the United States related to events in the mid to late nineteenth century. In fact, in 1946, Congress created the Indian Claims Commission to resolve these numerous claims and set up a standard for proving Indian title similar to the one set by the court in this case.

Though this case reached the Supreme Court in the middle of the twentieth century, the events leading to the dispute occurred much earlier. The Hualapai’s claim to the land at issue originated in their historical occupation of that land and in a series of events in the decades after the U.S. Army moved into the Southwest. The Hualapai’s original territory was in the western portion of the Grand Canyon. It lay north of the Mohave desert to the Colorado River. This area was part of the Mexican Cession. It was part of Mexico and became part of the United States in 1848 at the end of the Mexican-American War. Even before that, it had been part of the Spanish Empire. The Hualapai had lived there before and throughout these imperial changes. Like many Indigenous peoples of the South- and Mountain West, by the mid-nineteenth century, they had long had sporadic contact and indirect connections with white Americans, Mexicans, and European colonists through trade networks. They only came into sustained contact, and direct conflict, with U.S. Americans in the 1860s, however. At that point, the U.S. Army set up a series of forts in the Southwest, and U.S. settlers began to move into the region. Over the remaining decades of the nineteenth century, settlers migrated west in growing numbers, and the federal government worked to facilitate this migration, including wresting land from Native Americans.

The Hualapai fought the United States military over their land and resources in the late 1860s but settled into a generally peaceful relationship in the early 1870s. Then, in 1874, the army forcibly removed most of the Hualapai to the Colorado River Reservation, located south of their homeland in the northern Sonoran Desert. Less than a year later, those who had been removed, returned to northern Arizona. The Army did not again try to relocate the Hualapai. Rather, more men served as scouts, and the Army and Hualapai maintained a peaceful relationship. As part of this relationship, friendly army officials unofficially recognized part of the area as Hualapai territory. Thus, as the 1870s came to a close, the Hualapai lived on a diminished portion of their historical territory, but that area enjoyed informal protection from friends in the Army.

The early 1880s brought increased pressures on that land, however. Settler numbers were rising. The Atlantic and Pacific Railroad had also begun construction on a new line and was approaching Hualapai territory. The Hualapai asked for a reservation, looking for official, legal recognition of territory belonging to them and closed to outside incursions. Army representatives worked with the Hualapai to define proposed boundaries, which aligned with the area the Army had been unofficially treating as reserved for the Hualapai. On July 8, 1881, General Orlando Wilcox issued General Order 16 for a Hualapai reservation, subject to approval of the president. On January 4, 1883, President Chester A. Arthur signed an executive order creating the Hualapai Reservation. In federal court, the Hualapai would argue this history proved they had aboriginal title to the land.

Though the railroad only reached Hualapai territory in the 1880s, its legal claims originated in the preceding decades. As western settlement increased, the federal government and private companies worked to build a transcontinental railroad and improve infrastructure to facilitate migration. In the 1860s, Congress made land grants for multiple rail lines to connect the populated eastern portion of the United States with the Pacific coast, including a grant in 1866 to the Atlantic and Pacific Railroad. Their grant was to build a line connecting Arkansas and Missouri with California, running through Arizona roughly along the 35^th parallel. The grant provided a 100-foot right of way on each side of the tracks and odd-numbered sections of public land.[1] A proposed route was certified in 1872. In the early 1880s, construction reached northern Arizona from the west, including a stop at Peach Springs in Hualapai territory. The railroad immediately claimed ownership of some land within the reservation.

Questions about the railroad’s claims emerged in the early 1900s and escalated in the 1920s, but it would take considerable time and advocacy before the government filed a claim on behalf of the Hualapai. Initial questions centered around Peach Springs. The railroad charged the Hualapai for water there, but the Hualapai maintained they owned the springs. In the 1920s, some Hualapai began a sustained effort to regain control of the springs and surrounding land as well as to address several concerns about the Bureau of Indian Affair’s reservation management. Fred Mahone, who attended a government-run Indian boarding school and fought in WWI, led this effort in collaboration with Hualapai elders. This period of advocacy was crucial to the future court case for two reasons. First, these advocates did considerable work to gather evidence of Hualapai historical occupancy, including collecting oral testimony from people who could speak to Hualapai land use before the Army’s arrival and to the history of the reservation’s creation. This research would become key in later court arguments. Secondly, the advocacy, supported by the evidence, brought attention to the issue and pressured government officials to take action. The Hualapai argued their position to various executive branch departments and to congressional representatives. This led to several investigations, a district court case about the water rights alone, and congressional attention. Government officials, who tended to sympathize with the railroad at this point, discouraged further litigation, but the Hualapai persisted.

In the 1930s, a new political context led the government to file a complaint in district court. After hearings and outside pressure, the Senate Subcommittee on Indian Affairs asked for a new investigation into the Hualapai’s rights to the land claimed by the railroad in 1932. When President Franklin Delano Roosevelt took office in 1933, he appointed advocates for Native American rights to the Department of the Interior. These officials, pursuing an “Indian New Deal,” broadly changed the government’s posture toward Native Americans over the coming years. After they took up the task of investigating the Hualapai’s rights, the Interior Department recommended filing a suit on behalf of the Hualapai, in the fall of 1934.

The Department of Justice, at the recommendation of these Interior officials, hired Santa Fe Lawyer and federal Indian law expert Richard Hanna as independent counsel to conduct additional research and oversee the case. In August 1937, Hanna filed a complaint, on the government’s own behalf and as guardians of the Hualapai, in the U.S. District Court for the District of Arizona. He argued the railroad was interfering with the Hualapai’s possessory rights. The complaint asked for “adjudication that the tribe” had a right of occupancy and for relief in the form of an accounting of rents and profits.[2] The complaint contained two causes of action, one related to lands within the 1883 reservation and the other to land outside the reservation and within the grant.

The 1866 Act was key to both counts. It limited the railroad’s land grant to public land of which the United States had “full title.” It further stated: “The United States shall extinguish, as rapidly as may be consistent with public policy and the welfare of the Indians, and only by their voluntary cession, the Indian title to all lands falling under the operation of this act and acquired in the donation to the road named in the act.” Thus, for the land in dispute to belong to the railroad one of two things had to be true: the Hualapai had never had any title to the land, or they had previously held “Indian title,” but it had been extinguished.

The government’s argument was that ample historical evidence showed the land, both within and beyond the reservation boundaries, was the Hualapai’s ancestorial homeland, and thus they held Indian title at the time of the 1866 Act. As stated in a brief to the court on appeal: “The term ‘Indian title’ had a well understood meaning [in 1866]. It connoted the Indian possessory right based on aboriginal occupancy.” The government argued that the Hualapai had occupied their land since time immemorial and that the law was clear such occupation created possessory rights that could only be extinguished by the United States government. They then argued that those rights had not been extinguished as of 1866 or at any time since by either the United States or actions of the Hualapai. In fact, within the boundaries of the reservation, they argued, the Hualapai and the Army had made clear agreements in 1881 to include the disputed land. Their historical evidence was primarily Native Americans’, and some settlers’, oral testimony rather than written records. Much of the earlier advocacy by Hualapai, including Fred Mahone, and their allies was devoted to collecting this historical evidence and advocating for its validity and relevance to the issue.

In 1938, the railroad filed a motion to dismiss the case, arguing that the lands belonged to the railroad as a matter of “public record and common knowledge.” Railroad attorneys argued the Hualapai had never had any possessory rights. They maintained the question of any rights based on occupancy was one for Spanish and Mexican law because the land was part of the Mexican Cession. This position claimed that in the Treaty of Guadalupe Hidalgo, which ended the Mexican-American War, the United States only agreed to recognize and protect those Indian rights recognized prior to the Cession. Railroad attorneys claimed neither Spanish nor Mexican law recognized the Hualapai as having any Indian title because the Hualapai had been “wandering” and, thus, did not have any permanent territory of their own. Since the Cession, no treaty, statute, or other such governmental action had granted them rights; therefore, the Hualapai had no title, while the railroad’s title was clear.

Next, the railroad argued that even if the Hualapai had some title or rights at one time, they had long been extinguished. They pointed to a number of acts of Congress opening the territory to settlement as having clearly extinguished them—a power possessed by Congress. The railroad also pointed to removal of the Hualapai to the Colorado River Reservation as an event that extinguished any remaining title and left the lands vacant. Finally, the railroad claimed its rights had vested and been “confirmed by the political authorities” such that they were beyond dispute. They pointed not only to the original grant but to subsequent statutes about the land grant and railroad construction, as well as to 1920s reports about the dispute by executive branch officials, who tended to support the railroad’s view. The motion asked the court to take “judicial knowledge of all the matters referred to in the points and authorities, and dismiss the cause.” In other words, the railroad asked the court to recognize that these facts were so well known they did not need to be proven in court. 

These arguments point to the main questions before the courts. Settled agricultural Native American groups in the Eastern United States had long-established rights to their homelands, rights the courts had affirmed in early nineteenth-century cases. There was significant disagreement as to whether the Hualapai, and others like them, held the same Indian title to land, due to the different historical facts. If the Hualapai had primarily been hunter gatherers, did they have similar rights based on occupancy, or did their “wandering” mean they lacked such rights? Secondly, did the same rules apply to Native Americans living within the Mexican Cession as to those living elsewhere in the United States? Finally, if any title did exist, had it been extinguished and turned over to the railroad by specific historical events?

Judge David Ling, after listening to the arguments of both parties over ten days of hearings, took several months to render a decision. On March 1, 1939, he sided with the railroad. Specifically, he agreed that the Hualapai, as one of the “savage tribes,” as he put it, had no rights to the land under Spanish or Mexican law and thus no rights in the United States after the Treaty of Guadalupe Hidalgo. They had not been given any rights by acts of Congress either. He also agreed that even if they had any rights at one point, those rights had clearly been extinguished. He said: “The controlling elements of the case, namely, the laws of Spain and Mexico, the Legislation of Congress, and the course of administration, are matters of judicial knowledge. It is perfectly clear that no evidence adducible would in any way affect the result of the case.” Judge Ling, thus, took on judicial notice the facts substantially as the railroad presented them and dismissed the case.

After some waffling within the Justice Department about whether to pursue the case, Assistant Attorney General Norman Littell filed an appeal in the fall of 1939. Littell requested that the U.S. Court of Appeals for the Ninth Circuit recognize the Hualapai’s claim both within and beyond the 1883 reservation boundaries. But in a sign of his hesitation about the case, Littell’s brief left out much of the evidence Hanna had collected. Littell in fact briefly fired Hanna, but rehired him at the insistence of Interior Department officials. Judges Curtis Wilbur, Clifton Mathews, and William Healy heard the appeal. Judge Wilbur wrote the opinion upholding Judge Ling’s decision. The court agreed that the land within the Mexican Cession was indeed different from land in other parts of the United States, as the government intended to recognize only title claims that the Mexican government recognized at the time of the Cession. The court said Mexico did not recognize Hualapai possessory rights and so, the U.S. government did not either. Further, “no other Acts of Congress recognized such possessory rights.” Thus, the Hualapai had no such rights. The court further argued that subsequent actions by both the executive branch and Congress were effective denials of any possible rights, including the forcible expulsion of the Hualapai to the Colorado River Reservation, executive branch reports throughout the 1920s, and congressional actions. The court thus affirmed that the Hualapai had “no recognized right of occupancy of public lands other than in reservations set apart by the government for the tribe” and that the 1883 reservation was subject to the prior vested rights of the railroad.[3]

With these two rulings, the Hualapai seemed poised for defeat and the Santa Fe Pacific for victory by the fall of 1940. Both the district court and court of appeals had accepted on judicial notice that the Hualapai, as a “wandering tribe,” did not have any occupancy rights outside of the reservation and that within the reservation their rights were limited by the railroad’s grant. Both courts said these facts were matters of judicial knowledge such that no evidence could be introduced that would lead to their doubt.

These rulings comported with common legal theories about Native Americans’ land rights, but these views were being increasingly challenged at this time. Indeed, this case occurred as numerous Native American land claims were in the federal courts. In the fall of 1940, more than 100 tribes had cases in the Court of Claims asking for monetary damages for previously taken land. In 1946, Congress would create the Indian Claims Commission to resolve the growing number of claims against the United States. The Hualapai case was unusual because the United States served as the plaintiff, filing the claim on behalf of the Hualapai against a private company, whereas most claims were made by Native Americans against the United States. This placed the Justice Department in the position of simultaneously building a case for the Hualapai while at the same time defending the U.S. government in a growing number of cases with related legal issues. This conflicting interest contributed to the hesitation and vacillation within the Justice Department. The arguments on behalf of the Hualapai could have implications for claims against the United States if successful.

The Justice Department ultimately turned the case over to the Interior Department to pursue the appeal before the Supreme Court. Nathan Margold and Felix Cohen, lawyers for the Interior Department, led preparation of the case, along with Hanna and William Brophy, both hired as outside counsel. In addition to their substantive arguments, they strongly objected to the use of judicial notice to dismiss the case in their petition for certiorari, arguing that it was based on common perceptions of Indians rather than a thorough examination of all available evidence. In a memo to the conference, Justice Felix Frankfurter also seemed troubled by this. He questioned how it could be justifiable to take on judicial notice such questions of fact based on a selective presentation of government officials’ assessments. As the court was considering whether to take the case, the railroad quitclaimed lands within the reservation to the United States and argued relinquishing the land rendered the first cause of action unimportant. In later briefs, government lawyers maintained the quitclaim was not relevant and did not provide the relief they sought. The court took the case.

Interior lawyers then set about making their case. They made substantially similar arguments to those Hanna had presented to Judge Ling in district court. Railroad lawyers again presented the arguments that had succeeded for them in lower courts.

The Court heard arguments in November 1941 and issued its opinion on December 8. Justice William Douglas wrote the opinion in which the Court affirmed the lower courts with a modification regarding an accounting of rents and profits from the land within the reservation. The court said lands in the Mexican Cession did not actually operate differently than land in the rest of the United States. Congress had the power to extinguish Indian title, but no positive affirmation of title was necessary to establish that title. Instead, exclusive occupancy of a definable territory would establish such title. This conclusion meant that being a settled agricultural tribe was not necessary, though areas that were “wandered over by many tribes” did not belong to any of them. Further, “occupancy necessary to establish aboriginal possession is a question of fact to be determined as any other question of fact.” In this case, the brief removal of the Hualapai to the Colorado River reservation was not sufficient to extinguish such title if it existed. These rulings were a victory for Hualapai with regard to land within the reservation. The court rejected the claim of land outside of the reservation, however, because it said Hualapai acceptance of the 1883 reservation was tantamount to “voluntary cession” of title outside of those boundaries. Thus, within the boundaries of the reservation, the railroad’s 1866 grant was subject to the Hualapai’s right of occupancy claims, but the land outside the reservation was not.

The Hualapai’s case would take another six years before final resolution. The Supreme Court’s ruling required lower courts to hear evidence about who had held title of disputed areas within the reservation and answered some key questions setting up the possibility of Hualapai title. In 1947, the case was finally settled out of court between the railroad and the U.S. government on behalf of the Hualapai. In the settlement, the Hualapai largely gained control of the land they claimed.

United States v. Santa Fe Pacific R. Co emerged out of a late-nineteenth-century historical moment when U.S. Americans were rapidly settling the far west and displacing Native Americans with substantial government support. It then came to court only after sustained advocacy by the Hualapai and significant pressure from their allies during the Indian New Deal. By this point, land claims stemming from the late nineteenth century and earlier moments of Native American displacement were appearing in federal courts and in the U.S. Court of Claims in greater and greater numbers. The decision in this case made clear that adjudicating these claims would require assessing the evidence to determine whether the exclusive occupancy necessary to establish aboriginal possession had occurred. One scholar has argued this decision was key to making the Indian Claims Commission possible. Between 1946 to 1978, the ICC would hear and settle many such claims. Even after more than thirty years, there were still unresolved claims, which were transferred to the U.S. Court of Federal Claims.