The original Nonintercourse Act was signed by President George Washington. The Nonintercourse Act (also known as the Indian Intercourse Act or the Indian Nonintercourse Act) is the collective name given to six statutes passed by the Congress in 1790, 1793, 1796, 1799, 1802, and 1834 to set Amerindian boundaries of reservations. The various Acts were also intended to regulate commerce between settlers and the natives. The most notable provisions of the Act regulate the inalienability of aboriginal title in the United States, a continuing source of litigation for almost 200 years.
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1982) (holding states counter-claim waived sovereign immunity). However, the Nonintercourse Act itself does not abrogate state sovereign immunity.Ysleta Del Sur Pueblo v.
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Because the extinguishment occurred prior to the passage of the first Indian Nonintercourse Act in 1790, that Act did not avail the Delaware.
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U. S., 202 Ct.Cl. 182 (1973). The Nonintercourse Act does not prohibit leases.San Xavier Development Authority v. Charles, 237 F.3d 1149 (9th Cir. 2001).
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Dibble (1858), also reached the Supreme Court, which held that state nonintercourse acts (U.S. state laws prohibiting non-Indians from acquiring Indian lands) are not preempted by the Commerce Clause, the federal Nonintercourse Act, or federal treaties. Ely S. Parker, one of the administrators of the Blacksmith estate, went on to draft the surrender at Appomattox and to become the first indigenous Commissioner of Indian Affairs.
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Cuomo, 667 F. Supp. 938 (N.D.N.Y. 1987). In 1990, he ruled that both the 1795 and 1807 conveyances violated the Nonintercourse Act, and were thus invalid.
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The tribe claimed aboriginal title to lands in and around Charlestown, Rhode Island, and that any title claimed by the defendants would violate the Nonintercourse Act.Narragansett I, 418 F. Supp. at 802.
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Dibble (1858). Seneca Nation of Indians v. Christy (1896) also involved a Seneca plaintiff represented by a Civil War general. There, the plaintiffs challenged the Phelps and Gorham Purchase under the Nonintercourse Act.
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Because the tribes alleged that the state's actions violated the Indian Commerce Clause and Supremacy Clause (via the Nonintercourse Act) of the Constitution, the tribe's claim was allowed under the Ex parte Young doctrine.
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The original Nonintercourse Act was signed by President George Washington. The U.S. Indian policy was riddled with fraud. Here a peace commissioner offers torn ("ventilated") blankets, an empty rifle case, and 50 sides of spoiled beef, Frank Leslie's Illustrated Newspaper of 18 September 1873 The Nonintercourse Act of 1790 marked the beginning of the Trade and Industrial era. This act established that no sales of Indian lands were to be made between any persons or states unless the sale was authorized by the United States.
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In a federal land claims suit, the Mashantucket Pequot charged that the sale was in violation of the Nonintercourse Act that regulates commerce between Native Americans and non-Indians.W. Pequot Tribe of Indians v. Holdridge Enters., Inc.
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Cutler v. Dibble, 62 U.S. (21 How.) 366 (1858). Because the Senecas relied on state law, and the defendants relied on federal law, the case is essentially the inverse of Nonintercourse Act litigation of over the next 150 years.
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Section 25 of the Nonintercourse Act of 1834 provided federal crimes governing areas under exclusive federal jurisdiction would apply in Indian country, with an exception for Indian-on-Indian crimes.June 30, 1834, § 25, 4 Stat. 729, 733. In United States v.
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At the time Fellows was decided, this case had reached the U.S. Supreme Court but had not yet been argued.Joshua L. Brown, The Tonawanda Indians, Letter to the Editor of the New York Times (February 4, 1858). Members of the Seneca tribe had obtained a writ from the New York courts, under New York's state nonintercourse act, expelling the Ogden Land Company and their grantees. The defendants, before the Court, unsuccessfully challenged the state statute under the Indian Commerce Clause of the United States Constitution, the federal Nonintercourse Act and the Treaty of Buffalo Creek between the federal government and the Senecas.
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Courts have considered and rejected several affirmative defenses to Nonintercourse Act suits.Oneida County v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985) (rejecting the affirmative defenses of statute of limitations, abatement, implicit federal ratification, and nonjusticiability); Mohegan Tribe v. Connecticut, 528 F. Supp.
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Mexico ceded most of modern-day New Mexico to the United States in 1848 under the Treaty of Guadalupe Hidalgo.Treaty of Guadalupe Hidalgo, 9 Stat. 922 (1848). Three years later, in 1851, Congress explicitly extended the Nonintercourse Act to the territory of New Mexico.
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Judge Selden recused. By the time Fellows was decided, Dibble had reached the U.S. Supreme Court but had not yet been argued. The Court eventually affirmed in 1858, holding that the state statute did not violate the Indian Commerce Clause, the federal Nonintercourse Act, or the treaty.New York ex rel.
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In 1872, Bernard Lariviere took unlicensed barrels of whiskey to the Indian village of Crookston, Minnesota, to trade with Native Americans under the assumption that the land belonged to the Chippewa tribe and was thus outside of the United States' jurisdiction, and the federal government seized the barrels under the 1834 Nonintercourse Act.
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L. Rev. 525 (1994). there are exceptions: when the state consents to suit; when the federal government abrogates sovereign immunity by statute; when the federal government is the plaintiff or plaintiff-intervenor; and the category authorized by Ex parte Young (1908). In several cases, Nonintercourse Act plaintiffs have satisfied one of these exceptions.
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Historian Jack Campisi, who had previously worked as an expert witness with attorney Tom Tureen (known for his role in Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975) and other Nonintercourse Act claims), prepared the petition. The Pequot did not submit a full recognition application to the BIA until mid-1983.
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The First Circuit has also held that the cause of action under the Nonintercourse Act accrues only to tribes, not individuals;Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979). moreover, where a jury finds against tribal status, non-federally- recognized tribes are not entitled to reverse that holding as a matter of law.Mashpee Tribe v.
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Congress has done so with several tribes under Indian termination policy. Since South Carolina v. Catawba Indian Tribe (1986) it has been understood that the Nonintercourse Act does not protect the lands of terminated tribes; there, the termination act was held to have triggered the state statute of limitations with respect to the land claim.South Carolina v.
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Citing Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1st Cir. 1975) and other various Supreme Court decisions, the court held that the Nonintercourse Act applied to the lands in question.Narragansett I, 418 F. Supp. at 802-03 (citing Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975)).
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Tureen spent the summer following his first year in law school in Maine working for the Law Students' Civil Rights Research Council under the supervision of attorney Don Gellers. He moved to Maine following graduation from law school in 1969 to run Pine Tree Legal Assistance's one-man Indian Legal Services Unit. In 1971, while working on federal grants for the tribes and civil actions for individual tribal members, he co-authored with Francis J. O'Toole an article in the Maine Law Review titled "State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy," which laid out the legal theories on which the Nonintercourse Act claims would be based. In 1972 he joined the Native American Rights Fund (NARF), where he was employed for the next ten years while pursuing the Nonintercourse Act land claims.
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By 1840, nearly all of the Catawba reservation had been leased to non-Indians.476 U.S. at 501. After the Revolution, and decades after the passage of the federal Nonintercourse Act requiring Congressional consent for conveyances of Indian lands, South Carolina purchased 144,000 acre tract in 1840 with the Treaty of Nation Ford, without federal involvement.476 U.S. at 500-01.
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The Nonintercourse Act did not pre-empt the states from legislating additional restraints on alienation of Native American lands.New York ex rel. Cutler v. Dibble, 62 U.S. (21 How.) 366, 370 (1858) ("Nor is this statute in conflict with any act of Congress, as no law of Congress can be found which authorizes white men to intrude on the possessions of Indians.").
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Candelaria (U.S. 1926) In United States v. Candelaria (1926), the Supreme Court held that § 4 of the Lands Act provided the only affirmative defense that could be raised by land owners in a Nonintercourse Act/quiet title suit initiated by the federal government on behalf of the Pueblos, concerning pre-1924 conveyances.United States v. Candelaria, 271 U.S. 432, 441-42 (1926).
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While Oneida II remains the only final judgement entered by a court in favor of a tribe bringing a Nonintercourse Act land claim, Oneida I inspired dozens of other land claims. After tribes won initial judgements in some of these claims, Congress reacted by extinguishing the claimed aboriginal title and compensating the tribal plaintiffs. These Indian Land Claims Settlements are collected in 25 U.S.C. tit. 19.
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On the way home to New Mexico, Luján's party was attacked by Ute Indians, who stole his horses. Luján retaliated by kidnapping some of their children to sell in New Mexico. He and his party were caught in Manti and charged with violating the Nonintercourse Act, which prohibited trading with the Indians without a valid license. His property was seized and the children were sold into slavery to families in Manti.
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655 Jefferson and members of Congress were impressed with Little Turtle's arguments, and on 30 March 1802, Congress passed the revised Indian Nonintercourse Act. This and other federal laws restricting the sale of alcohol to Native Americans remained in effect until 1953. In 1809, Little Turtle suffered a break with other Miami leaders when William Henry Harrison, governor of the Indiana Territory, came to Fort Wayne to renegotiate treaty terms.
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Morris retained the Morris Reserve for himself and sold the western portion of his rights to the Holland Land Company in 1792 and 1793 (the Holland Purchase). The state of New York disregarded the requirements of the Nonintercourse Act (that a federal commissioner be present and that any sale of Indian lands be approved by Congress) and purchased lands directly from Indians within the state until 1846.Hauptman, 2001, at 7, 47. According to Prof.
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1978) (finding subject-matter jurisdiction). In Oneida Cnty. v. Oneida Indian Nation of N.Y. State (1984) ["Oneida II"], the Supreme Court held that tribes have a federal common law cause of action, not pre-empted by the Nonintercourse Act, for possessory land claims based upon aboriginal title; the court also rejected the following affirmative defenses: limitations, abatement, ratification or nonjusticiability.Oneida Cnty. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985).
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By 1872 tribal population was down to 700, with no males over the age of fifty-five. Other tribes shrank at a similar rate.James William, Clearing the Plains: Disease, Politics of Starvation, and the Loss of Aboriginal Life, Volume 65 of Canadian Plains Studies, University of Regina Press, 2013. The problem of alcohol abuse worsened when in 1872 the Nonintercourse Act was amended to allow Indians to sell and trade alcohol among themselves.
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At the time Fellows was decided, this case had reached the U.S. Supreme Court but had not yet been argued.Joshua L. Brown, The Tonawanda Indians, Letter to the Editor of the New York Times (February 4, 1858). The defendant-appellants, before the Court, unsuccessfully challenged the state statute under the Indian Commerce Clause of the United States Constitution, the federal Nonintercourse Act and the Treaty of Buffalo Creek between the federal government and the Senecas.New York ex rel.
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Regardless, colonial land law relating to indigenous peoples became the foundation for aboriginal title in the United States during the Articles of Confederation-era and after the ratification of the United States Constitution. The colonial-law prohibition was codified at the federal level by the Confederation Congress Proclamation of 1783 and the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1834. Pre-Revolutionary land transactions remained the subject of political and legal disputes well after Independence.See, e.g.
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Moreover, the dissent argued that the termination statute undid only the statutory restraint on alienation (the Nonintercourse Act), not the common law restraint on alienation: > [E]ven if I agreed with the majority that the removal of restraints on > alienation should trigger the application of state limitations periods, the > 1959 Act lifted only statutory restrictions on the alienation of Catawba > land, and the requirement that the Federal Government approve any transfer > of the property at issue in this case did not, and does not, stem solely > from any federal statute. The land set aside for the Catawbas in 1760 and > 1763 was within the Tribe's aboriginal territory, and their claim to the > land thus derives from original title as well as from the 18th-century > treaties. With respect to original title, at least, the Nonintercourse Act > merely “put in statutory form what was or came to be the accepted rule-that > the extinguishment of Indian title required the consent of the United > States.”476 U.S. at 522-23 (footnotes and internal quotation marks omitted).
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Iroquois lands circa 1720 A map showing the Phelps and Gorham Purchase, the Morris Reserve, and the Holland Purchase Aboriginal title in New York refers to treaties, purchases, laws and litigation associated with land titles of aboriginal peoples of New York, in particular, to dispossession of those lands by actions of European Americans. The European purchase of lands from indigenous populations dates back to the legendary Dutch purchase of Manhattan in 1626, "the most famous land transaction of all."Banner, 2005, at 75. More than any other state, New York disregarded the Confederation Congress Proclamation of 1783 and the follow-on Nonintercourse Acts, purchasing the majority of the state directly from the Iroquois nations without federal involvement or ratification.Gunther, 1958, at 3--7. New York is the source of several landmark decisions concerning aboriginal title including Oneida I (1974), "first of the modern-day [Native American land] claim cases to be filed in federal court,"Vecsey & Starna, 1988, at 144. and Oneida II (1985), "the first Indian land claim case won on the basis of the Nonintercourse Act."Vecsey & Starna, 1988, at 145.
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In 1790, the young United States government enacted the Nonintercourse Act, which stated that the transfer of reservation lands to non-tribal members had to be approved by the United States Congress. Between the years of 1794 and 1833, the Penobscot and Passamaquoddy tribes ceded the majority of their lands to Massachusetts (then to Maine after it became a state in 1820) through treaties that were never ratified by the US Senate and that were illegal under the constitution, as only the federal government had the power to make such treaties. They were left only the Penobscot Indian Island Reservation. In the 1970s, at a time of increasing assertions of sovereignty by Native Americans, the Penobscot Nation sued the state of Maine for land claims, calling for some sort of compensation in the form of land, money, and autonomy for the state's violation of the Nonintercourse Act in the 19th century. The disputed land accounted for 60% of all of the land in Maine, and 35,000 people (the vast majority of whom were not tribal members) lived in the disputed territory.
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Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir. 1979), was the first litigation of the Nonintercourse Act to go to a jury. After a 40-day trial, the jury decided that the Mashpee Tribe was not a "tribe" at several of the relevant dates for the litigation, and the United States Court of Appeals for the First Circuit upheld that determination (the panel included two judges from the landmark Joint Tribal Council of the Passamaquoddy Tribe v.
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As the original 13 colonies grew and treaties were made, the de facto boundary between settled territory and Indian country during the 18th century was roughly the crest of the Appalachian Mountains, a boundary set into law by the Royal Proclamation of 1763, the Confederation Congress Proclamation of 1783, and later by the Nonintercourse Act. The Indian Reserve was gradually settled by European Americans and divided into territories and states, starting with Kentucky County (an extension of Virginia) and the Northwest Territory.
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In a footnote, the dissent further noted that: > The federal common-law rule against alienation of aboriginal title without > the consent of the sovereign was recognized as early as [Johnson v. M'Intosh > (1823)], and it is reflected in the Constitution's Indian Commerce Clause . > . . . In Oneida II, the Court rejected a suggestion that Indian common-law > rights to tribal lands were somehow swallowed up or pre-empted by the > Nonintercourse Act; it made clear that the common law still furnishes an > independent basis for legal relief.
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In his report to his firm, persuading them to take the case on a contingency fee basis, Shattuck repeated several arguments against Indian land claims and concluded: "Before the Tuscarora case we might have backed away for one or more of the above reasons."Shattuck, p. 8. Shattuck notes that, "[i]ronically, the state's brief in the Tuscarora case ... gave me my first real understanding of how the Nonintercourse Act worked and how it might be used to press the Oneida claim."Shattuck, p. 21.
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Oneida Indian Nation of N.Y. State v. Oneida County (1974) ["Oneida I"] held for the first time that there was federal subject-matter jurisdiction for possessory claims by Indian tribes based upon aboriginal title.Oneida Indian Nation of N.Y. State v. Oneida County, 414 U.S. 661 (1974). Oneida County v. Oneida Indian Nation of N.Y. State (1985) ["Oneida II"], held that there was a federal common law cause of action for such possessory claims, not pre-empted by the Nonintercourse Act, and rejected all of the counties' remaining affirmative defenses.
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Confederation Congress Proclamation of 1783 was a proclamation by the Congress of the Confederation dated September 22, 1783 prohibiting the extinguishment of aboriginal title in the United States without the consent of the federal government.25 Journals of the Continental Congress 602 (1783). The policy underlying the proclamation was inaugurated by the Royal Proclamation of 1763, and continued after the ratification of the United States Constitution by the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1833.Robert J. Miller, The Discovery Doctrine in American Indian Law, 42 Idaho L. Rev.
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As stated in Narragansett, there are four elements to a Nonintercourse Act claim. > In order to establish a prima facie case, plaintiff must show that: # it is > or represents an Indian "tribe" within the meaning of the Act; # the parcels > of land at issue herein are covered by the Act as tribal land; # the United > States has never consented to the alienation of the tribal land; # the trust > relationship between the United States and the tribe, which is established > by coverage of the Act, has never been terminated or abandoned.418 F. Supp. > at 803.
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The Chitimacha's ancestral territory The Chitimacha brought suit in the United States District Court for the Western District of Louisiana in July 1977 (complaint amended July 1979) claiming a large tract in St. Mary Parish, Louisiana. The land in the tract was conveyed from the tribe in three 18th century transactions, allegedly in violation of the Nonintercourse Act. The three sales, which occurred under Spanish rule, deeded land to Phillip Verret (September 10, 1794), Frederick Pellerin (October 1, 1794), and Marie Joseph (June 22, 1799). Eighty land owners were named as defendants.
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County of Oneida (Oneida I), 414 U.S. 661 (1974). The Narragansett claimed a few thousand acres of land in and around Charlestown, Rhode Island, challenging a variety of early 19th century land transfers as violations of the Nonintercourse Act, suing both the state and private land owners.Jarboe, 2010, at 407 n.72. Judge Raymond James Pettine of the United States District Court for the District of Rhode Island granted the Narragansett's motion to strike the state's affirmative defenses and denied the state's necessary party motion and motion to dismiss.
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Oneida I and Oneida II opened the doors of the federal courts to dozens of high-profile land claims, especially in the former Thirteen Colonies, where tribal land continued to be purchased by the states without federal approval after the passage of the Constitution and the Nonintercourse Act.Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994). Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975) held that (even unrecognized) tribes could sue the federal government to compel it to bring suits against the state governments to vindicate Indian land claims.
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To support assimilation, in 1842 the state violated the Nonintercourse Act when it illegally allocated plots from of their communal , to be distributed in parcels to each household for subsistence farming, although New England communities were adopting other types of economies. The state passed laws to try to control white encroachment on the reservation; some stole wood from its forests. A large region, once rich in wood, fish and game, it was considered highly desirable by the whites. With competition between whites and the Wampanoag, conflicts were more frequent than for more isolated native settlements elsewhere in the state.
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After the war, William McIntosh, the military leader of the Lower Creek, a half-white member of the prestigious Wind Clan, established a police force and organized a National Creek Council. The state of Georgia, which initiated the treaty talks in December 1820, had two main goals. First, it hoped for the cession of Muscogee land contiguous with Cherokee territory, in order to split the tribes and prevent a military alliance. Second, Georgian citizens had some $350,000 in outstanding claims against the Muscogee for seizure or destruction of property prior to the passage of the Nonintercourse Act of 1802.
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The federal regulation of Indian affairs in the United States first included development of the position of Indian agent in 1793 under the Second Trade and Intercourse Act (or the Nonintercourse Act). This required land sales by or from Indians to be federally licensed and permitted. The legislation also authorized the president of the United States to "appoint such persons, from time to time, as temporary agents to reside among the Indians," and guide them into acculturation of American society by changing their agricultural practices and domestic activities. Eventually, the U.S. government ceased using the word "temporary" in the Indian agent's job title.
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In 1980, the Catawba sued the state of South Carolina and 76 public and private land-owning entities, as named representatives of a defendant class estimated at 27,000 persons.476 U.S. at 500 n.4. The tribe contended that the Treaty of Nation Ford was void because of the federal Nonintercourse Act and because the state had not lived up to its obligations (by delaying the purchase for 2.5 years, by spending only $2,000 on the new reservation, and buying land for the new reservation from within the old reservation). The tribe sought both possession of the lands and 140 years of trespass damages.
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Samuel Kirkland, missionary to the Oneidas turned land speculatorHauptman, 2001, at 69--74. President George Washington gave the following speech to the Seneca Nation of New York in 1790, after the passage of the Nonintercourse Act: > I am not uninformed that the six Nations have been led into some > difficulties with respect to the sale of their lands since the peace. But I > must inform you that these evils arose before the present government of the > United States was established, when the separate States and individuals > under their authority, undertook to treat with the Indian tribes respecting > the sale of their lands. But the case is now entirely altered.
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On May 1, 1991, due to advancing age, Chief Big Eagle named his son, Aurelius H. Piper, Jr. (b. 1945), as Chief of Chiefs and Hereditary Chief of the Golden Hill Tribe. Known as Chief Quiet Hawk, Piper is an ex-Marine and former social worker who was then serving as executive director of American Indians for Development, Inc. Immediately upon assuming leadership he launched the Golden Hill Indian Development Corporation, with the purpose of economic development of the reservation properties for the benefit of the tribal membership. In September, 1992, Quiet Hawk filed a lawsuit to reclaim lands taken from the tribe in violation of the federal Nonintercourse Act.
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Seneca Nation of Indians v. Christy (1896). The New York Court of Appeals had dismissed the claim based on an interpretation of the Nonintercourse Act and an invocation of the statute of limitations for the state enabling act which enabled the Seneca to sue in state court; the Supreme Court dismissed the appeal because of the adequate and independent state grounds doctrine.Seneca Nation of Indians v. Christy, 162 U.S. 283 (1896). The Act remained essentially un- litigated by tribes until Federal Power Commission v. Tuscarora Indian Nation (1960), where the Tuscarora attempted to avoid the condemnation of their land by the construction of a federal dam.
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The Nonintercourse Act of 1834 specifically prohibited White American intrusion into Indian territories. The Oregon Donation Land Claim Act of 1850 opened Oregon Territory to European- American settlement; Washington Territory had a similar law. The law sunset 1 December 1855; settlers had to file their land claims by that date, so White leaders had incentive to get treaties signed with Native Americans as speedily as possible to enable development by whites. Under the laws encouraging settlement, each male settler could homestead and receive free for himself and 640 acres with his wife (women could not individually hold property). Settlers arriving before 1850 could receive , or 1 Regular Section, one square mile.
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In 1976, for example, the Maine municipal bond market collapsed after lawyers at Ropes and Gray, a respected Boston law-firm, refused to certify that municipalities could enforce nonpayment of property taxes by foreclosing on property subject to a Nonintercourse Act claim. Titles in the Town of Mashpee were frozen during the pendency of the Mashpee claims because insurers were unwilling to guarantee good title. All of the settlements in which Mr. Tureen was involved provided for federal recognition of the tribes involved and the appropriation of federal funds for the purchase of the land from willing sellers for return to the tribes. Following the decision in Passamaquoddy v.
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Library of Congress, A Century of Lawmaking for a New Nation: U.S. > Congressional Documents and Debates, 1774 - 1875, American State Papers, > Senate, 7th Congress, 1st Session, Indian Affairs: Volume 1: p. 655 On 27 January 1802 Jefferson said in an address to Congress: > These people are becoming very sensible of the baneful effects produced on > their morals, their health, and existence by the abuse of ardent spirits, > and some of them earnestly desire a prohibition of that article from being > carried among them. On 30 March 1802, Congress passed the revised Indian Nonintercourse Act. This and other federal laws restricting the sale of alcohol to Native Americans remained in effect until 1953.
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Thomas Norton Tureen (born 1943Nellie Blagden, Lawyer Tom Tureen Has Bad News for Maine: the Indians Want, and May Get, Most of the State, Time (January 31, 1977).) is an American lawyer and entrepreneur known for his work with American Indian tribes. While an attorney with the Native American Rights Fund he pioneered the use of the Nonintercourse Act to obtain return of tribal lands lost 180 years earlier and federal recognition for previously non- federally recognized tribes. Tureen successfully litigated Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975), which established that the federal government has a trust responsibility to protect the land of all tribes, including those not previously recognized.
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One of the earliest interpretations of the Nonintercourse Act comes from a speech by President George Washington to the Seneca Nation of New York in 1790, after the passage of the Act: > I am not uninformed that the six Nations have been led into some > difficulties with respect to the sale of their lands since the peace. But I > must inform you that these evils arose before the present government of the > United States was established, when the separate States and individuals > under their authority, undertook to treat with the Indian tribes respecting > the sale of their lands. But the case is now entirely altered. The general > Government only has the power, to treat with the Indian Nations, and any > treaty formed and held without its authority will not be binding.
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Justice Robert Cooper Grier delivered the judgement of the Court. Justice Robert Cooper Grier delivered the opinion of the unanimous Court, affirming the judgement of the New York Court of appeals, with costs. The Court limited itself to examining whether the state statute and proceedings had violated any federal law, whether the Indian Commerce Clause of the United States Constitution, the federal Nonintercourse Act or the Treaty of Buffalo Creek between the federal government and the Senecas.62 U.S. at 370 ("The only question which this court can be called on to decide is, whether this law is in conflict with the Constitution of the United States, or any treaty or act of Congress, and whether this proceeding under it has deprived the relators of property or rights secured to them by any treaty or act of Congress.").
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In United States v. McBratney (1881), the Court held that the federal government had failed to reserve criminal jurisdiction over Indian country in Colorado upon its admission as a U.S. state. Thus, it had no jurisdiction to try the murder of a non-Indian by a non-Indian on the Ute reservation.United States v. McBratney, 104 U.S. (14 Otto) 621 (1881). In Ex parte Crow Dog (1883), the Court held that the Nonintercourse Act of 1834's exception for Indian-on-Indian crimes had not been repealed by the "bad men" clause of a treaty, and that therefore there was no federal jurisdiction to try such a crime.Ex parte Kan-gi-shun-ca (Crow Dog), 109 U.S. 556 (1883). Congress responded by passing the Major Crimes Act. In United States v. Kagama (1886), the Court upheld the Major Crimes Act.United States v. Kagama, 118 U.S. 375 (1886).
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Oneida Indian Nation of New York (2005), a divided panel held that the equitable doctrine of laches bars all tribal land claims sounding in ejectment or trespass, for both tribal plaintiffs and the federal government as plaintiff-intervenor. The ruling was the culmination of a two-decade-long litigation in the United States District Court for the Northern District of New York before Judge Neal Peters McCurn. Pursuant to a jury verdict, the Cayuga Nation of New York had been awarded $247.9 million, representing the current fair market value and 204 years of rental value damages for 64,015 acres conveyed by the tribe to the state in violation of the Nonintercourse Act (including pre-judgement interest). This precedent has effectively ended the viability of all aboriginal title litigation in the Second Circuit (Connecticut, New York, and Vermont), the site of nearly all of the unresolved Indian land claims in the United States.Fort (2011); Fort (2009); Wandres (2006).
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Idaho v. Coeur d'Alene Tribe (1997) held that state sovereign immunity barred not only quiet title suits but also suits against state officials which would constitute the equivalent of quiet title.Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997). Although Coeur d'Alene involved sovereign title to a lake bed, this precedent has been applied to bar even suits against states in their capacity as ordinary property owners.Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18 (2d Cir. 2004). There are at least two Congressional statutes which may have contemplated authorizing aboriginal title suits against states: the Nonintercourse Act and 28 U.S.C. § 1362, providing: "district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States."28 U.S.C. § 1362. The Supreme Court rejected the latter in Blatchford, supra; the Fifth Circuit rejected the former in 2000.
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Although the Court found that the Nonintercourse Act did not bar condemnation under the Federal Power Act, it laid down an expansive interpretation of the Act: > As to the Tuscaroras' contention that [25 U.S.C. § 177] prohibits the taking > of any of their lands for the reservoir 'without the express and specific > consent of Congress,' one thing is certain. It is certain that if s 177 is > applicable to alienations effected by condemnation proceedings under s 21 of > the Federal Power Act, the mere 'expressed consent' of Congress would be > vain and idle. For s 177 at the very least contemplates the assent of the > Indian nation or tribe. And inasmuch as the Tuscarora Indian Nation > withholds such consent and refuses to convey to the licensee any of its > lands, it follows that the mere consent of Congress, however express and > specific, would avail nothing. Therefore, if s 177 is applicable to > alienations effected by condemnation under s 21 of the Federal Power Act, > the result would be that the Tuscarora lands, however imperative for the > project, could not be taken at all.
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The Mashpee filed suit on August 16, 1976 against a defendant class of land owners in the town of Mashpee. The United States District Court for the District of Massachusetts opted to hold separate trials, beginning with the issue of tribal status at the time of the suit and the time of the transactions. The Mashpee attempted to obtain a continuance so that the Department of the Interior could determine their tribal status instead, but the court denied their motion. The trial began on October 17, 1977. After forty days of trial, special interrogatories were submitted to the jury on January 4, 1978. The verdict was returned on January 6, finding that the Mashpee were a tribe on March 3, 1834 (when the District of Mashpee was established) and on March 3, 1843 (when the District of Mashpee was partitioned) but were not a tribe on July 22, 1790 (the day the first Nonintercourse Act was passed), June 22, 1869 (the date on which the state law restraints on alienation were removed by the legislature), May 28, 1870 (the date on which the town of Mashpee was incorporated), or when the suit was filed.
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