Editing Nonintercourse Act (section)

==Land claims litigation==
{{main|Aboriginal title in the United States}}
[[File:Indian Country-Territory 1834.jpg|thumb|upright=1.8|alt=Indian Country-Territory 1834|'''Indian Territory''' or '''Indian Country''' (red) as set by the Nonintercourse Act of 1834, which also dovetailed with other measures to relocate Indian populations westward.]]

===History===
The first litigation of the Nonintercourse Act by an indigenous party to reach the Supreme Court was ''[[Cherokee Nation v. Georgia]]'' (1831), which the Court dismissed on the technicality that the court lacked [[original jurisdiction]],<ref name="wirt">''[[Cherokee Nation v. Georgia]]'', 30 U.S. (5 Pet.) 1 (1831).</ref> so the result was the Cherokee did not have a standing as a foreign nation, but the opinion did not rule on the merits, leaving the door open for a ruling on a resubmitted case. Former Attorney General [[William Wirt (Attorney General)|William Wirt]], the Cherokee's lawyer, argued that the challenged Georgia statute was void, inter alia, "[b]ecause it is repugnant to a law of the United States passed in 1803 entitled 'an act to regulate trade and intercourse with Indian tribes, and to preserve peace on the frontiers'."<ref>[[William Wirt (Attorney General)|William Wirt]], Opinion on the Right of the State of Georgia to Extend Her Laws Over the Cherokee Nation (June 20, 1830), reprinted in ''Niles' Weekly Register'' at 81, 88 (September 25, 1830).</ref> Wirt also argued that the state statute violated the [[Cherokee treaties]] and the [[Contract Clause]] and the dormant [[Indian Commerce Clause]] of the [[United States Constitution]].<ref name="wirt" /> A similar argument was made in the Bill filed by Wirt in the Supreme Court.<ref>The Bill Filed on behalf of the Cherokee Nation vs. the State of Georgia, in [[Richard Peters (reporter)|Richard Peters]], ''[https://books.google.com/books?id=ZKXo2wIP1B8C&q=richard+peters+cherokee The case of the Cherokee Nation against the state of Georgia]'' 13–15 (1831).</ref> William Wirt's arguments<ref>See 1832 Opinions in [[Worcester v. Georgia]].</ref> may have had a telling effect, for in a subsequent action, ''[[Worcester v. Georgia]]'' (1832), the court reversed itself, holding that the Cherokee were a sovereign nation and thus the Supreme Court did have original jurisdiction.

After ''Cherokee Nation'', the next such case to reach the Court was ''[[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 ground]]s doctrine.<ref>''[[Seneca Nation of Indians v. Christy]]'', 162 U.S. 283 (1896).</ref> The Act remained essentially unlitigated 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. The court held the Act inapplicable, but noted:

{{quote|It is certain that if [25 U.S.C. §&nbsp;177] is applicable&nbsp;... the mere 'expressed consent' of Congress would be vain and idle. For §&nbsp;177 at the very least contemplates the assent of the Indian nation or tribe.&nbsp;... [I]t follows that the mere consent of Congress, however express and specific, would avail nothing. Therefore, if §&nbsp;177 is applicable&nbsp;... the result would be that the Tuscarora lands, however imperative for the project, could not be taken at all.<ref>''[[Federal Power Commission v. Tuscarora Indian Nation]]'', 362 U.S. 99, 119–20 (1960).</ref>}}

This dicta inspired ''[[Oneida Indian Nation of N.Y. State v. Oneida Cnty.]]'' (1974) ("''Oneida I''"),<ref>George C. Shattuck, ''The Oneida land claims: a legal history'' 7–8 (1991).</ref> where the Supreme Court held that there was federal subject-matter jurisdiction for Indian land claims based upon aboriginal title and violations of the Nonintercourse Act.<ref>''[[Oneida Indian Nation of N.Y. State v. Oneida Cnty.]]'', 414 U.S. 661 (1974); see also ''Pueblo of Isleta ex rel. Lucero v. Universal Constructors, Inc.'', 570 F.2d 300 (10th Cir. 1978) (finding subject-matter jurisdiction).</ref> 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]], and [[nonjusticiability]].<ref name="oneidaII">''[[Oneida Cnty. v. Oneida Indian Nation of N.Y. State]]'', 470 U.S. 226 (1985).</ref>

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.  For example, in ''[[Joint Tribal Council of the Passamaquoddy Tribe v. Morton]]'' (1st Cir. 1975), after the First Circuit held that the federal government was obliged to bring a suit on the tribe's behalf claiming 60% of Maine, Congress approved an $81.5 million settlement.<ref>''[[Joint Tribal Council of the Passamaquoddy Tribe v. Morton]]'', 388 F. Supp. 649 (D. Me.), aff'd, 528 F.2d 370 (1st Cir. 1975); see Pub. L. No. 96-420, 94 Stat. 1785 (codified at 25 U.S.C. §§&nbsp;1721–35).</ref> In the case of the [[Narragansett land claim]] (D.R.I. 1976), Congress enacted a settlement after the court struck all the defendant's affirmative defenses (laches, statute of limitations/adverse possession, estoppel by sale, operation of state law, and public policy) and denied the state's motion to dismiss on the grounds of sovereign immunity and nonjusticiability.<ref>''[[Narragansett land claim#Narragansett I|Narragansett Tribe of Indians v. Southern R.I. Land Dev. Co.]]'', 418 F. Supp. 798 (D.R.I. 1976); ''[[Narragansett land claim#Narragansett II|Narragansett Tribe of Indians v. Murphy]]'', 426 F. Supp. 132 (D.R.I. 1976); see Pub. L. No. 95-395, 92 Stat. 813 (codified at 25 U.S.C. §§&nbsp;1701–16).</ref> Similarly, in ''[[Mohegan Indians v. Connecticut#Modern relitigation and settlement|Mohegan Tribe v. Connecticut]]'' (D. Conn. 1982), Congress approved the creation of the [[Mohegan Sun]] after the court struck the defendant's affirmative defenses.<ref>''[[Mohegan Tribe v. Connecticut]]'', 483 F. Supp. 597 (D. Conn. 1980), aff'd, 638 F.2d 612 (2d Cir. 1980), cert. denied, 452 U.S. 968 (1981), on remand, 528 F. Supp. 1359 (D. Conn. 1982); see Pub. L. No. 103-377, 108 Stat. 3501 (codified at 25 U.S.C. §&nbsp;1775).</ref> With the [[Mashantucket Pequot Tribe]]<ref>''Western Pequot Tribe of Indians v. Holdridge Enters. Inc.'', No. H76-cv-193 (D. Conn.); see Pub. L. No. 98-134, 97 Stat. 851 (codified at 25 U.S.C. §§&nbsp;1751–60).</ref> and [[Wampanoag people|Wampanoag]],<ref>''Wampanoag Tribal Council of Gay Head v. Town of Gay Head'', No. 74-cv-5826 (D. Mass.); see Pub. L. No. 100-95, 101 Stat. 704 (codified at 25 U.S.C. §&nbsp;1771).</ref> Congress enacted a settlement before the courts had a chance to enter any rulings.

===Elements===
As stated in ''Narragansett'', there are four elements to a Nonintercourse Act claim.

{{quote|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.<ref>418 F. Supp. at 803.</ref>}}

More recently (2008), the Second Circuit has stated:

{{quote|In order to establish a violation of the Non-Intercourse Act, the [plaintiffs] are required to establish that: (1) they are an Indian tribe; (2) the land at issue was tribal land at the time of the conveyance; (3) the United States never approved the conveyance, and (4) the trust relationship between the United States and the tribe has not been terminated.<ref>''Seneca Nation of Indians v. New York'', 382 F.3d 245, 258 (2d Cir. 2004).</ref>}}

====Tribal status====
The ''Passamaquoddy'' and ''Narragansett'' cases, supra, are examples where the plaintiff has prevailed despite not being [[federally recognized tribes]] (the Passamaquoddy obtained federal recognition through the Maine Indian Claims Settlement; the Narragansett gained federal recognition in 1983, five years after the Rhode Island Claims Settlement Act). Although federal tribal status is prima facie evidence of the first element, the Act also applies to unrecognized tribes.<ref>See O'Toole and Tureen, 1971, at 19–22 & n.101–117.</ref>

If the tribe is unrecognized, the defendant may defeat the plaintiff's prima facie case either by showing that the Indians did not constitute a "tribe" at the time of the conveyance, or at the time of the litigation; thus, the defendant may show that the plaintiff is not the successor in interest to the tribe whose lands were illegally alienated. The leading case where the defendants prevailed on this element is ''[[Mashpee Tribe v. New Seabury Corp.]]'' (1st Cir. 1979).<ref>''[[Mashpee Tribe v. New Seabury Corp.]]'', 447 F. Supp. 940 (D. Mass. 1978), aff'd, 592 F.2d 575 (1st Cir. 1979). Further history: ''Mashpee Tribe v. Watt'', 542 F. Supp. 797 (D. Mass. 1982), aff'd, 707 F.2d 23 (1st Cir. 1983); ''Mashpee Tribe v. Sec'y of Interior'', 820 F.2d 480 (1st Cir. 1987) (Breyer, J.); 72 Fed. Reg. 8,007 (2007) (granting federal recognition); ''Bingham v. Massachusetts'', 2009 WL 1259963 (D. Mass. 2009), aff'd, 616 F.3d 1, 6 n.7 (1st Cir. 2010) ("We do not decide what effect the Department of the Interior's 2007 designation of the Mashpee Wampanoag as a federally recognized tribe has on [the three preceding] opinions."); id. at 6 n.8 ("In April 2008, the tribe entered into an agreement with the Town in which it received certain Town lands in exchange for waiving all claims to property located within the Town.").</ref> Alternatively, the action may be stayed until the [[Bureau of Indian Affairs]] makes a tribal status determination (and eventually dismissed if the BIA concludes the plaintiffs are not the successors in interest).<ref>''Golden Hill Paugussett Tribe of Indians v. Weicker'', 39 F.3d 51 (2d Cir. 1994), on remand, ''Golden Hill Paugussett Tribe of Indians v. Rell'', 463 F. Supp.2d 192 (D. Conn. 2006).</ref> The [[Pueblo]] were initially interpreted not to be "Indians" for the purposes of the Nonintercourse Act;<ref>''United States v. Joseph'', 94 U.S. 614, 617 (1876) ("[The Nonintercourse Act was designed for] tribes whose incapacity for self-government required both for themselves and for the citizens of the country this guardian care of the general government. The pueblo Indians&nbsp;... had nothing in common with this class. The[ir] degree of civilization&nbsp;... their willing submission to all the laws of the Mexican government&nbsp;... and their absorption&nbsp;... all forbid the idea that they should be classed with the Indian tribes for whom the intercourse acts were made."); ''United States v. Lucero'', 1 N.M. 422 (1869); see also ''[[United States v. Sandoval]]'', 231 U.S. 28 (1913) ("[Pueblo lands] vary in quantity, but usually embrace&nbsp;... fee-simple ownership under grants from the King of Spain, made during the Spanish sovereignty, and confirmed by Congress since the acquisition of that territory&nbsp;...").</ref> however, this holding was subsequently overruled.<ref>''United States v. Candelaria'', 271 U.S. 432 (1926). See also, [[Pueblo Lands Act]] of 1924, 43 Stat. 636; Cohen, ''Handbook of Federal Indian Law'' 327 (2005).</ref>

The elements given above are for a tribe. The United States, acting in its capacity as a trustee, may bring, and has successfully brought, actions on behalf of a tribe.<ref>''United States v. Candelaria'', 271 U.S. 432 (1926); ''Alonzo v. United States'', 249 F.2d 189 (10th Cir. 1957); ''United States v. 7,405.3 Acres of Land in Macon, Clay and Swain Cntys.'', 97 F.2d 417 (4th Cir. 1938); ''United States v. Boylan'', 265 F. 165 (2d Cir. 1920); ''United States v. Berrigan'', 2 Alaska 442 (D. Ala. 1905).</ref> The federal government was vested with similar power to enforce the anti-alienation provisions of the Allotment Acts.<ref>''Bowling v. United States'', 233 U.S. 528 (1914); ''Gritts v. Fisher'', 224 U.S. 640 (1912); ''Heckman v. United States'', 224 U.S. 413 (1912); ''Franklin v. Lynch'', 233 U.S. 269 (1911); ''Tiger v. Western Inv. Co.'', 221 U.S. 286 (1911); ''United States v. Joseph'', 94 U.S. 614 (1876). But see ''United States v. Waller'', 243 U.S. 452 (1917).</ref> Conversely, individual Indians have no standing under the Act.<ref>''Gardner v. Wyasket'', 197 Fed. Appx. 721 (10th Cir. 2005); ''James v. Watt'', 716 F.2d 71 (1st Cir. 1983); ''Epps v. Andrus'', 611 F.2d 915 (1st Cir. 1979); ''Mashpee Tribe v. Watt'', 542 F. Supp. 797 (D. Mass. 1982).</ref> This is true even if individual plaintiffs attempt the certify a class of all tribal members; the tribe itself must sue.<ref>''Canadian St. Regis Band of Mohawk Indians v. New York'', 573 F. Supp. 1530 (N.D.N.Y. 1983).</ref>

====Covered land====
Unlike the [[Confederation Congress Proclamation of 1783]], the Nonintercourse Act applies to land within the boundaries of a state, including the original thirteen.<ref>''[[City of Sherrill v. Oneida Indian Nation of N.Y.]]'', 544 U.S. 197, 205 n.2 (2005).</ref> The First Circuit in ''Passamaquoddy'' and the Second Circuit in ''Mohegan Tribe'', supra, held that the Nonintercourse Act applies to the entire United States, including the [[Thirteen Colonies|original thirteen]]. No defendant has yet persuaded a court otherwise.

However, the defendant will defeat this element if the challenged conveyance occurred before 1790.<ref>''[[Del. Nation v. Pennsylvania]]'', 2004 WL 2755545 (E.D. Pa. 2004), aff'd, 446 F.3d 410 (3d Cir. 2006) (upholding 1734 conveyance); ''New York v. Shinnecock Indian Nation'', 523 F. Supp.2d 185 (E.D.N.Y. 2007) (upholding May 12, 1659; April 10, 1662; November 1, 1676; and December 6, 1686 conveyances).</ref> The [[Confederation Congress Proclamation of 1783]] may cover conveyances between 1783 and 1790, but the only court to consider it held that the Confederation Congress had neither the power nor the intent to prohibit conveyances to states within their borders.<ref>''Oneida Indian Nation of N.Y. v. New York'', 649 F. Supp. 420 (N.D.N.Y. 1986), aff'd, 860 F.2d 1145 (2d Cir. 1988).</ref> The [[Royal Proclamation of 1763]] may cover conveyances between 1763 and 1783; however, the only court to examine such a conveyance found that it satisfied the requirements of the Proclamation.<ref>''Seneca Nation of Indians v. New York'', 382 F.3d 245 (2d Cir. 2004) (upholding a 1764 conveyance).</ref> For example, the conveyances at issue in ''[[Johnson v. McIntosh]]'' (1823) occurred on July 5, 1773 and October 18, 1775, but neither party to the suit was indigenous.<ref>''[[Johnson v. McIntosh]]'', 21 U.S. (8 Wheat.) 543 (1823).</ref>

====Federal non-consent====
Through the policies of [[Indian removal]] in the East and [[Indian reservation]]-creation in the West, the federal government removed Native Americans from most of their ancestral land. However, examples of Congress approving a state action that [[alienated land]] are rare indeed. Congress would have to pass a statute with express language, or the Senate would have to ratify the treaty alienating the land, to secure such federal approval. The view taken by several of the [[Indian Land Claims Settlements]] is that Congress may consent to such conveyances retroactively; this view has not been tested in court, although it is likely to be upheld because the power of Congress to extinguish aboriginal title without compensation is [[Plenary power|plenary]].

====Trust relationship====
In ''Passamaquoddy'', supra, the First Circuit held that only Congress, and only with a clear statement, can terminate a federal–tribal trust relationship; acts of state governments are irrelevant. 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.<ref>''[[South Carolina v. Catawba Indian Tribe, Inc.]]'', 476 U.S. 498 (1986).</ref>

===Affirmative defenses===
Courts have considered and rejected several [[affirmative defense]]s to Nonintercourse Act suits.<ref>''[[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 Indians v. Connecticut#Modern relitigation and settlement|Mohegan Tribe v. Connecticut]]'', 528 F. Supp. 1359 (D. Conn. 1982) (rejecting the affirmative defenses of Tenth and Eleventh Amendment sovereign immunity and res judicata); ''[[Schaghticoke Tribe of Indians v. Kent School Corp.]]'', 423 F. Supp. 780 (D. Conn. 1976) (rejecting the affirmative defenses of laches, statute of limitations, marketable title statute, adverse possession, and waiver and estoppel based on post-Act conduct; waiver and estoppel based on pre-Act conduct are valid); ''[[Narragansett land claim#Narragansett I|Narragansett Tribe of Indians v. Southern Rhode Island Land Development Co.]]'', 418 F. Supp. 798 (D.R.I. 1976) (rejecting the affirmative defenses of  nonjusticiability, laches, statute of limitations/adverse possession, estoppel by sale, operation of state law, and public policy); ''[[Narragansett land claim#Narragansett II|Narragansett Tribe of Indians v. Murphy]]'', 426 F. Supp. 132 (D.R.I. 1976) (rejecting the affirmative defense of sovereign immunity).</ref> However, there are two affirmative defenses that have been accepted by some courts: state sovereign immunity and the equitable doctrine of [[laches (equity)|laches]].

====State sovereign immunity====

The structure of the original Constitution and the text of the Eleventh Amendment gives states sovereign immunity from most suits.<ref>See ''Skokomish Indian Tribe v. France'', 269 F.2d 555 (9th Cir. 1959); see also Katharine F. Nelson, Resolving Native American Land Claims and the Eleventh Amendment: Changing the Balance of Power, 39 Vill. L. Rev. 525 (1994).</ref> 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.<ref>''Seneca Nation of Indians v. New York'', 26 F. Supp. 2d 555 (W.D.N.Y. 1998), aff'd, 178 F.3d 95 (2nd Cir. 1999) (US as intervenor); ''United States for and on Behalf of Santa Ana Indian Pueblo v. Univ. of N.M.'', 731 F.2d 703 (10th Cir. 1984) (US as plaintiff); ''[[Mohegan Indians v. Connecticut#Modern relitigation and settlement|Mohegan Tribe v. Connecticut]]'', 528 F. Supp. 1359 (D. Conn. 1982) (holding states counter-claim waived sovereign immunity).</ref> However, the Nonintercourse Act itself does not abrogate state sovereign immunity.<ref>''Ysleta Del Sur Pueblo v. Laney'', 199 F.3d 281 (5th Cir. 2000); see also ''[[Seminole Tribe v. Florida]]'', 517 U.S. 44 (1996).</ref> Moreover, the authority is clear that the ''Ex parte Young'' exception does not apply.<ref>''[[Idaho v. Coeur d'Alene Tribe of Idaho]]'', 521 U.S. 261 (1997); ''Oneida Indian Nation of N.Y. v. County of Oneida'', 617 F.3d 114 (2d Cir. 2010); ''Western Mohegan Tribe and Nation v. Orange County'', 395 F.3d 18 (2d Cir. 2004); cf. ''Canadian St. Regis Band of Mohawk Indians v. New York'', 146 F. Supp.2d 170 (N.D.N.Y. 2001); ''[[Narragansett land claim#Narragansett II|Narragansett Tribe of Indians v. Murphy]]'', 426 F. Supp. 132 (D.R.I. 1976).</ref> Therefore, plaintiffs must obtain the [[intervention (law)|intervention]] of the federal government or relegate themselves to suing local governments and private land owners.<ref>Lauren E. Rosenblatt, Note, Removing the Eleventh Amendment Barrier: Defending Indian Land Title Against State Encroachment After ''Idaho v. Coeur d'Alene Tribe'', 78 Tex. L. Rev. 719 (2000).</ref>

Further, in actions against states, Indians are not entitled to the presumption of 25 U.S.C. § 194, which applies only to "persons".<ref>''Wilson v. Omaha Indian Tribe'', 442 U.S. 653 (1979).</ref>

====Laches====

Four dissenting justices would have barred the tribes action based on ''[[Laches (equity)|laches]]'' in ''[[Oneida County v. Oneida Indian Nation of N.Y. State]]'' (1985), a question the majority did not reach.<ref name="oneidaII"/> The Second Circuit adopted the view of the dissent in ''[[Cayuga Indian Nation of N.Y. v. Pataki]]'' (2d Cir. 2005), and since then no tribal plaintiff has been able to overcome this affirmative defense in that circuit.<ref>''Oneida Indian Nation of N.Y. v. County of Oneida'', 617 F.3d 114 (2d Cir. 2010); ''[[Cayuga Indian Nation of N.Y. v. Pataki]]'', 413 F.3d 266 (2d Cir. 2005); ''Onondaga Nation v. New York'', 2010 WL 3806492 (N.D.N.Y. 2010); ''Shinnecock Indian Nation v. New York'', 2006 WL 3501099 (E.D.N.Y. 2006); see also Kathryn E. Fort, The New Laches: Creating Title where None Existed, 16 Geo. Mason L. Rev. 357 (2009); Patrick W. Wandres, Indian Land Claims, ''Sherrill'' and the Impending Legacy of the Doctrine of Laches, 31 Am. Indian L. Rev. 131 (2006).</ref> ''Cayuga'' erased a damage award of $247.9 million, the largest ever awarded under the Act.