[3] The Tee-Hit-Ton, a subgroup of the Tlingit people, brought an action in Court of Claims for compensation, under the Fifth Amendment to the United States Constitution, for timber taken from tribal-occupied lands in Alaska authorized by the Secretary of Agriculture.

However, the Court of Claims also said that such a title was not enough to bring suit because the Congress did not recognize the tribe's legal rights of property ownership.

That is, McIntosh recognized that Natives had an a priori right of occupancy until such time as it transferred to the United States and became a fee simple interest within the American property system.

Hence, in Mitchel v. United States, the Supreme Court recognized that the Natives' "right of occupancy is considered as sacred as the fee simple of the whites."

Nevertheless, the Tee-Hit-Ton court falsely attributed to McIntosh the notion that the right of occupancy—aboriginal title itself—did not exist until the United States acquiesced to give it to Natives.