Editing Nonintercourse Act (section)

===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.