In a landmark ruling last month, the Brazilian Supreme Court decided that indigenous communities have rights to land, despite lacking any formal legal title to them. The court recognized the right to land based solely on ancestral or aboriginal claims. That other Brazilians inhabit and are using the land today under established legal rules is irrelevant, the court concluded, because the indigenous people had historically occupied the land before the arrival of Europeans. This is true of the entirety of Brazil, as it is in the United States. In 1955, however, the United States Supreme Court decided a case that reached the opposite result, thereby preserving the sovereignty of the United States.

The U.S. case involved a clan of indigenous people, known as the Tee-Hit-Ton, that had inhabited an area near the town of Wrangell in southeastern Alaska for millennia. The Tee-Hit-Ton never obtained legal title to the land they inhabited from any external government. They were subject to minimal control by the Russian Empire before the land was sold to the United States in 1867. In 1907, the U.S. government established the area as a national forest preserve. The Tee-Hit-Ton, numbering less than one hundred, continued to live in the area. During World War II, however, Congress authorized the cutting of trees in the area for war materiel, and in 1951, signed a lease with a company to exploit the region’s resources. The Tee-Hit-Ton sued, alleging the trees (and the land) belonged to them.

The Tee-Hit-Ton claimed that at the time that the United States acquired Alaska from Russia in 1867, they possessed aboriginal title to the land. This was based in part on the history of the area. In 1821, Alexander I, the Czar of Russia, issued an edict to the Russian American Company to “not forcibly extend possession of the Company in regions inhabited by tribes” and to limit interactions with the tribes to “exchange, by mutual consent, of European wares for fur and Native products.” The law that created the Alaska Territory in 1884 noted that “the Indians … shall not be disturbed of any lands actually in their use or occupation or now claimed by them.” The natives had a strong claim to the land.

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