Editing Nonintercourse Act (section)

===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>