Editing Nonintercourse Act (section)

====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>