The typical remedy for a property owner whose property interests have been diminished from government regulations—as is the case with the federal government's regulation of the Miccosukee's tribal lands—would be compensation sought under the Fifth Amendment of the United States Constitution. The last clause of the Fifth Amendment— the Takings Clause—provides that "private property [shall not] be taken for public use, without just compensation." The Supreme Court has explained that the purpose of the Takings Clause is to prevent the government from "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole." Arguably, this is exactly what the Miccosukee Tribe is being forced to do—bear the burden of the environmental degradation of their tribal lands for no other purpose than for the benefit of the majority of society. Unfortunately, Fifth Amendment protections have not been fully available to all American Indian tribes based on the unique land tenure rights of the native peoples. It accordingly remains unclear whether the Tribe would be successful in a claim for compensation under the Takings Clause of the Fifth Amendment.
Taking it to the Bank: Creating a New Constitutional Standard and Using Blue Carbon Banking to Compensate the Miccosukee Tribe for the Federal "Taking" of their Tribal Lands,
Fla. A&M U. L. Rev.
Available at: https://commons.law.famu.edu/famulawreview/vol12/iss2/6