Compensation for Takings Under the 5th Amendment
By Courtney Denette
Courtney Denette, a third-year student at Albany Law School, graduated magna cum laude from Binghamton University in 2010 where she majored in Philosophy and Politics & Law, and minored in studio art (painting). Prior to law school, she worked in the Enforcement Bureau of the New York State Liquor Authority and interned in the Legal Bureau there.
Last year, she served as a teaching assistant for Professor Bonventre in Criminal Law. Currently, she is the student Executive Editor of the Center for Judicial Process, an Associate Editor for the Albany Law Review, and a law clerk at the New York State Bar Association.
Courtney wrote this paper for Professor Robert Batson's course in Federal Indian Law.
Unfortunately, for many of the Indian tribes whose land was taken, a great deal of innocent Americans settled and built their lives on these lands. Hence, the tribal lands cannot be restored without displacing a large quantity of people who did not play a hand in the injustices of the past.
Therein lies the central problem with the solution of awarding damages to the Indians, rather than restoring their land. Most of the time, Indian culture is founded on connections to that particular parcel of land. Even the opportunity to purchase a new tract or a different reservation of land may seem inadequate.
This creates a dilemma, one that can never be solved perfectly. The best, fairest, and most feasible way for the United States to atone for stripping many tribes of their land is through continuing to allow the tribes to sue the United States, and for the United States to award damages for the taking of tribal land. This is rooted in the hope that the innocent Americans settled on once tribal land can continue to live there and that awarding damages to the tribes will allow them means to purchase land and begin to rebuild a semblance of the culture they once had.
The evolution to recognizing that just compensation should be paid in some instances proved slow and imperfect. But the concept of paying damages for the land, plus interest, represents a means to redress the years of wrongdoing towards the tribes.
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