dissenting.
It is not tenable, at this late date in the life of the Republic, to rule that Native Americans living on a Reservation are not entitled to the constitutional protections of the Fifth Amendment. See Act of June 27, 1952, Pub.L. No. 82-414 as amended, 8 U.S.C. § 1401:
The following shall be nationals and citizens of the United States at birth: .... (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property.
The jurisprudence of conquest, set forth in Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823), has no applicability to this case. This case is not concerned with Indian title deriving from aboriginal occupancy as against title derived from James I, see 21 U.S. (8 Wheat.) at 587; it is concerned solely with Reservation lands duly established by governmental action, and today’s property interests, in constitutional terms, of the Indian occupants of Reservation lands. It is a case of first impression; and its holding is incorrect as well as unjust.
The Hoopa-Yurok Settlement Act of October 31, 1988 (the source of this litigation) recognized the Indians’ property interests in the Joint Reservation. In providing that the Court of Federal Claims has jurisdiction of compensation claims arising from the 1988 Act, 25 U.S.C. § 1300i-11, Congress recognized that its restructuring of the Joint Reservation could give rise to claims under the Fifth Amendment. The interests of the Yurok and Karuk tribes1 in the Joint Reservation did not arise from any asserted tribal title of antiquity, the claim rejected in Johnson v. McIntosh, but from acts of the United States as sovereign, the authority endorsed in Johnson v. McIntosh.
The recognition of property interests is fundamental to the culture as well as the *1381law of this nation. Recognition of these Indians’ interests in the Joint Reservation property that they have occupied for over a century is not a mere “matter of conscience,” as the panel majority holds, but a matter of law and right, cognizable in the courts. See Romero v. Kitsap County, 931 F.2d 624, 627 n. 5 (9th Cir.1991) (“[P]lain-tiffs claim that they were deprived of rights secured under both the Constitution and specified Indian treaties. Claims of deprivation of constitutional rights are, of course, cognizable under section 1983, as are, under specified circumstances, claims for deprivations of treaty-based rights.”) (citations omitted). Monetary claims of just compensation based on deprivation of property by governmental action are similarly cognizable in the Court of Federal Claims.
The Court of Federal Claims incorrectly required “title” as a threshold requirement of Fifth Amendment applicability to a compensable interest in the Joint Reservation. The presence of a compensable interest of constitutional dimension does not depend on whether title to the Joint Reservation is held by its Indian occupants or by the United States as their trustee. The issue is whether the tribes that were consigned to this Joint Reservation, by the congressional Act of April 8, 1864 and the implementing executive orders of June 23, 1876 and October 16, 1891, have property interests that are subject to the Constitution. Congress correctly thought so, and designated the judicial path for review of just compensation claims arising from the 1988 Settlement Act. My colleagues on this panel, holding that these Indians have no compensable interest in the Joint Reservation and its resources, deny history, statute, and precedent. Thus I must, respectfully, dissent.
The Joint Reservation
Since 1891 the Hoopa Valley, Yurok (Klamath), and Karuk tribes have been assigned to the Joint Reservation established pursuant to the 1864 Act of Congress and the implementing executive orders of 1876 and 1891. The historical record shows documents and promises, consideration and military pressure, whereby these California Indians agreed to cease warfare against the white settlers and inhabit reserved lands. As stated in Short v. United States, 202 Ct.Cl. 870, 486 F.2d 561 (Ct.Cl.1973):
It is perfectly plain that from the outset in 1864 all involved understood that the reservation was intended for an undetermined number of tribes including the Hoopas and Klamath, and that the authorities repeatedly acted on this assumption.
Id. at 565. These Indians are not interlopers into this land, but peoples designated to occupy the Joint Reservation. Their unchallenged possession thereof for over a century, by acts of the United States, created property interests within the cognizance of the Fifth Amendment.
The panel majority, ruling that no such interest exists, relies on the fact that the executive orders establishing and enlarging the Joint Reservation were not ratified as treaties. However, as discussed in Tee-Hit-Ton v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955), the existence of a treaty is not necessary; what is necessary is congressional intent to establish a permanent reservation, and the actual establishment of such a reservation. Indeed, congressional intent as to permanence is not illuminated by whether there was a treaty, for in 1871 the government stopped negotiating treaties with the native tribes while continuing to instruct the President to establish reservations:
Although the Executive Branch engaged in treaty-making with the Indian tribes before 1871, in that year Congress decided that it would no longer negotiate treaties with the tribes. Congress thus *1382suspended the entire process of treaty negotiation with the Indian tribes and delegated power to the President to create specified numbers of Indian reservations. 25 U.S.C. § 71. “Reservations established after 1871 were accordingly created either by statute or, until Congress ended the practice in 1919, by executive order.”
Parravano v. Babbitt, 70 F.3d 539, 545 (9th Cir.1995) (quoting William C. Canby, American Indian Law 17-18 (2d ed.1988)).
The Act of 1864 delegated to the President the authority to create four reservations for the California native tribes. The panel majority errs in relying on the absence of a treaty embodying the executive orders of 1876 and 1891 as negating any tribal property interest in the Joint Reservation. These orders, carrying out the 1864 Act and other instructions of Congress, were designed to effect a permanent peace between the native peoples of this region and the large influx of prospectors and settlers, with whom there were serious confrontations. The relocation and containment of warring Indians upon designation of the Joint Reservation was plainly intended as a permanent home. There is no suggestion in the historical record that a temporary arrangement was contemplated by either the United States government who established it or the Native Americans who complied with it.
The Settlement Act of 1988, now partitioning the Joint Reservation, provided compensation to the displaced Indians. The issue raised in this lawsuit is the adequacy of the compensation. The Karuk tribe points out that its circumstances differ from those of the Yuroks, and the unaffiliated Indians point to their particular circumstances. The panel majority holds that none of these plaintiffs has a compensable interest, and thus can not challenge the justness of the compensation. I do not agree. Neither title in fee nor a ratified treaty is a requirement of Fifth Amendment applicability to Native American claims arising under the Constitution.
The Fifth Amendment Right is Not Limited to Titular Ownership
The court also reasons that a constitutionally cognizable taking could not occur because these lands had not been permanently transferred to these Indians, the court referring to the absence of “title” to the Reservation lands. I need not belabor that title is not requisite to Fifth Amendment rights, and that property interests subject to just compensation are not limited to real property held in fee. Property interests of Fifth Amendment relevance have arisen in many forms other than title to real estate. See, e.g., Eastern Enterprises v. Apfel, 524 U.S. 498, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998) and cases cited therein (economic regulation may effect a taking); Andrus v. Allard, 444 U.S. 51, 65, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (taking is evaluated by examining the action’s “justice and fairness”); Ruckelshaus v. Monsanto Co., 467 U.S. 986, 104 S.Ct. 2862, 81 L.Ed.2d 815 (1984) (taking of trade secrets cognizable under the Fifth Amendment); United States v. General Motors Corp., 323 U.S. 373, 65 S.Ct. 357, 89 L.Ed. 311 (1945) (taking of a leasehold was a taking for Fifth Amendment purposes); Preseault v. United States, 100 F.3d 1525 (Fed.Cir.1996) (conversion of a railway easement into a recreational easement was a taking); Avenal v. U.S., 100 F.3d 933 (Fed.Cir.1996) (change in salinity of water in oyster beds due to government water diversion project was a taking); Shelden v. United States, 7 F.3d 1022 (Fed.Cir.1993) (taking of a security interest when it was made unenforceable by government seizure of the property).
On any definition of the property rights and interests cognizable under the Fifth Amendment, those of the Indian plaintiffs *1383constitute an interest subject to just compensation. Takings law does not exclude beneficial interests. The establishment of this Joint Reservation with the United States as trustee was for the benefit of these native peoples, see United States v. Mitchell, 463 U.S. 206, 225, 103 S.Ct. 2961, 77 L.Ed.2d 580 (1983) (discussing the “general trust relationship between the United States and the Indian people”), whose right of permanent and peaceful occupancy has been confirmed by time as well as by governmental action. Beneficial interests in real property are not defeated simply because the fee is held by the trustee. A trust relationship does not authorize the trustee to evict the beneficiary.
The 1988 Settlement Act deprived the plaintiff tribes of occupancy rights in the major land area of the Joint Reservation, in favor of the Hoopa Valley tribe, as well as depriving the plaintiffs of the right established in the Short v. United States litigation to share in the timber income of that area, in favor of the Hoopa Valley tribe. See generally Calder v. Bull, 3 U.S. (3 Dall.) 386, 388, 1 L.Ed. 648 (1798) (Chase, J.) (“It is against all reason and justice” to presume that the legislature has been entrusted with the power to enact “a law that takes property from A and gives it to B”) (quoted in Eastern Enterprises, 524 U.S. at 523, 118 S.Ct. 2131). These plaintiffs do not here challenge the government’s authority to reallocate the Joint Reservation land and natural resources; they ask only that the compensation therefor be just. See First English Evangelical Lutheran Church v. County of Los Angeles, 482 U.S. 304, 315, 107 S.Ct. 2378, 96 L.Ed.2d 250 (1987) (“[The Takings Clause] is designed not to limit the governmental interference with property rights per se, but rather to secure compensation in the event of otherwise proper interference amounting to a taking”).
The Supreme Court has recognized that the fact of Indian occupancy, accompanied by the retention of title in the United States in trust “for the purpose of Indian reservations,” the words of the 1864 Act, establishes a compensable interest. In Shoshone Tribe of Indians v. United States, 299 U.S. 476, 496, 57 S.Ct. 244, 81 L.Ed. 360 (1937) the Court explained:
Title in the strict sense was always in the United States, though the Shoshones had the treaty right of occupancy with all its beneficial incidents. What those incidents are, it is needless to consider now. The right of occupancy is the primary one to which the incidents attach, and division of the right with strangers is an appropriation of the land pro tanto, in substance, if not in form.
The Shoshone tribe had protested the government’s forced division of their reservation and its resources with the Arapaho tribe. In holding that just compensation was required, the Court again stated that the Shoshone tribe had
the right of occupancy with all its beneficial incidents; that, the right of occupancy being the primary one and as sacred as the fee, division by the United States of the Shoshone’s right with the Arapahos was an appropriation of the land pro tanto;
United States v. Shoshone Tribe of Indians, 304 U.S. 111, 115, 58 S.Ct. 794, 82 L.Ed. 1213 (1938) (emphasis added). The Court stressed that “title in the strict sense” was not controlling, and that the retention of legal title by the United States as trustee did not free it from the obligation to pay just compensation to the tribe:
[Although the United States always had legal title to the land and power to control and manage the affairs of the Indians, it did not have the power to give to others or to appropriate to its own use any part of the land without rendering, or assuming the obligation to pay, just compensation to the tribe, for that would *1384be, not the exercise of guardianship or management, but confiscation.
Id. at 115, 58 S.Ct. 794. See also Chippewa Indians of Minnesota v. United States, 301 U.S. 358, 375, 57 S.Ct. 826, 81 L.Ed. 1156 (1937) (“Our decisions, while recognizing that the government has power to control and manage the property and affairs of its Indian wards in good faith for their welfare, show that this power is subject to constitutional limitations and does not enable the government to give the lands of one tribe or band to another, or to deal with them as its own”).
In 1927 Congress acted to assure recognition of the permanence of Indian rights in reservations that were established by executive order. By 1927 Congress had already enacted laws to assure that the profits of logging and mineral extraction on reservation lands were used for the benefit of the Indian residents. E.g., 41 Stat. 34 (1919) (mineral rights); 36 Stat. 857 (1910) (timber rights). The 1927 Act added oil and gas revenue rights, and also prohibited the President from altering the boundaries of executive order reservations without congressional approval. “Changes in the boundaries of reservations created by Executive order, proclamation, or otherwise for the use and occupation of Indians shall not be made except by Act of Congress.” Pub.L. No. 69-702, 44 Stat. 1347, (codified at 25 U.S.C. § 398a-398e). The government in its brief now challenges the significance of the 1927 Act, a mysterious challenge, for since 1927 the record shows no reservation lands taken or realigned without just compensation in Fifth Amendment terms. See, e.g., the Act of Sept. 30, 1968, 82 Stat. 885, 888 (lands of Salt River Pima-Marieopa Indian Community and Fort McDonald Apache Indian Community taken for Orme Dam); Act of June 24,1974, 88 Stat. 266, 269 (transfer of lands to Cocopah Tribe in compensation for rights-of-way). See Felix S. Cohen, Handbook of Federal Indian Law (1982) at 496-497 n. 202 (collecting statutes). The argument, pressed by the panel majority, that reservations established by Act of Congress and implemented by executive order are somehow inferior in their property attributes, is without force or support.
A recent example of recognition of Fifth Amendment applicability to Indian property rights in reservation lands is seen in Hodel v. Irving, 481 U.S. 704, 107 S.Ct. 2076, 95 L.Ed.2d 668 (1987), wherein the Court invalidated a provision of the Indian Lands Consolidation Act of 1983. The Court ruled that the Act’s escheat of small estates to the tribe required compensation to the Indian heirs under the Takings Clause. Although the land was held “in trust” by the United States, the right of descent and devise by the Indian holders of the allotment was recognized. The recognition of reservation lands as property subject to the laws of inheritance, although nominally held by the United States in trust, contravenes my colleagues’ theory that no compensable interest arises from beneficial occupancy.
The panel majority relies heavily on Tee-Hit-Ton v. United States, 348 U.S. 272, 75 S.Ct. 313, 99 L.Ed. 314 (1955), extending it to situations to which it did not and does not apply. At issue in that case were 350,000 acres of land and 150 square miles of water in Alaska, which the members of the Tee-Hit-Ton clan claimed to have occupied and used from time immemorial. The Court explained that these natives’ use of this land and water was like “the use of the nomadic tribes of States Indians,” and drew an explicit distinction from the rights derived from occupancy of a “recognized” reservation. The Court explained that Indian rights in recognized reservations do not require any particular legal form, but that there must be governmental action and intention to form a reservation. Id. at 278-79, 75 S.Ct. 313. The Court found this action and intention absent for the areas claimed by the Tee-Hit-Ton clan.
*1385In contrast, the Joint Reservation is a recognized reservation formed under congressional and executive authority. See Mattz v. Arnett, 412 U.S. 481, 98 S.Ct. 2245, 37 L.Ed.2d 92 (1973) (affirming permanent status of the Joint Reservation). The claims herein do not remotely resemble those discussed in Tee-Hit-Ton. It does not defeat their claims that the Yurok or Karuk tribes occupied some of these areas in prehistory, as the panel majority observes. That does not convert their eviction from most of the Joint Reservation into a non-compensable act. While conquest may extinguish aboriginal claims, see Johnson v. McIntosh, supra, the legislative adjustment of long-established rights in recognized reservations is today subject to the protection of the Constitution. See United States v. Shoshone Tribe of Indians, 304 U.S. 111, 58 S.Ct. 794, 82 L.Ed. 1213 (1938). The panel majority misapplies the holding of Tee-Hit-Tcm as negating any right to compensation deriving from the partition of the land and resources of the Joint Reservation.
The plaintiff Indians possessed not only the right to occupy the land of the Joint Reservation, but also the right to share in its timber income, litigated in the Short v. United States cases, supra. Compensable interests arise from natural resources as well as land, see United States v. Klamath and Moadoc Tribes, 304 U.S. 119, 123, 58 S.Ct. 799, 82 L.Ed. 1219 (timber); United States v. Shoshone Tribe, 304 U.S. at 116, 58 S.Ct. 794 (minerals and timber). All parties agree that the 1988 Act was enacted to overrule Short. However, the 1988 Act was not based on a theory that these Indians do not have a compensable interest in this resource; the panel majority errs in so ruling.
Summary
The Act of 1864 and executive orders of 1876 and 1891 that created the Joint Reservation, and the plaintiff Indians’ possession and occupancy thereof, created property interests of constitutional cognizance. The plaintiffs have a compensable interest in the land and resources of the Joint Reservation, and not the temporary and permissive status attributed by the panel majority. The 1988 Settlement Act itself recognizes the entitlement of the Indians of the Joint Reservation to just compensation. Thus the plaintiffs are entitled, by constitutional right and statutory direction, to judicial review of the issue of just compensation. I respectfully dissent from my colleagues’ contrary ruling.
. I do not discuss separately the claims of the unaffiliated Native Americans who are also appellants, for the principles here stated do not depend on whether those affected by the Settlement Act of 1988 are members of an organized tribe.