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 A settler is a person who has migrated to an area and established a permanent residence there, often to colonize the area. A settler who migrates to an area previously uninhabited or sparsely inhabited may be described as a pioneer. Settle ...

and the

natives Indigenous peoples are culturally distinct ethnic groups whose members are directly descended from the earliest known inhabitants of a particular geographic region and, to some extent, maintain the language and culture of those original people ...

. The most notable provisions of the Act regulate the inalienability of

aboriginal title in the United States The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title (also known as "original Indian title" or "Indian right of occupancy"). Native American tribes and nations establish aboriginal title by act ...

, a continuing source of litigation for almost 200 years. The prohibition on purchases of Indian lands without the approval of the federal government has its origins in the Royal Proclamation of 1763 and the

Confederation Congress Proclamation of 1783 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.2 ...

Text of the land provision

The first four Acts expired after 4 years; the 1802 and 1834 Acts had no expiration. The version of the Act in force at the time of the illicit conveyance determines the law that applies. The courts have found few legal differences between the five versions of the Act. For example, three dissenting justices in ''

South Carolina v. Catawba Indian Tribe ''South Carolina v. Catawba Indian Tribe, Inc.'', 476 U.S. 498 (1986), is an important U.S. Supreme Court precedent for aboriginal title in the United States decided in the wake of '' County of Oneida v. Oneida Indian Nation of New York State'' ( ...

'' (1986) noted that the 1793 Act expanded the scope of the 1790 Act by applying the prohibition not only to lands but "claims." The original Act, passed on July 22, 1790 provides:

No sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

The 1793 Act provides:

purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or a convention entered into pursuant to the constitution ...

The 1796 Act provides:

purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty, or convention, entered into pursuant to the constitution ...

The 1799 Act provides:

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty or convention, entered into pursuant to the constitution ...

The 1802 Act provides

No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation, or tribe of Indians, within the bounds of the United States, shall be of any validity, in law or equity, unless the same be made by treaty or convention, entered into pursuant to the constitution ...

The 1834 Act, currently codified at 25 U.S.C. § 177, provides:

No purchase, grant, lease, or other conveyance of land, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant the constitution.

Legislative history

One of the earliest interpretations of the Nonintercourse Act comes from a speech by President

George Washington George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of th ...

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. Here then is the security for the remainder of your lands. No State nor person can purchase your lands, unless at some public treaty held under the authority of the United States. The general government will never consent to your being defrauded. But it will protect you in all your just rights.

Land claims litigation

History

The first litigation of the Nonintercourse Act by an indigenous party to reach the Supreme Court was ''

Cherokee Nation v. Georgia ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...

'' (1831), which the Court dismissed on the technicality that the court lacked of original jurisdiction,''

'', 30 U.S. (5 Pet.) 1 (1831). 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, the Cherokee's lawyer, argued that the challenged Georgia statute was void, inter alia, " cause 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.'" Wirt also argued that the state statute violated the

Cherokee treaties The Cherokee have participated in over forty treaties in the past three hundred years. Pre-American Revolution ;Treaty between two Cherokee towns with English traders of Carolina, 1684 : Established a steady trade in deerskins and Indian slaves. ...

and the

Contract Clause Article I, Section 10, Clause 1 of the United States Constitution, known as the Contract Clause, imposes certain prohibitions on the states. These prohibitions are meant to protect individuals from intrusion by state governments and to keep ...

and the dormant

Indian Commerce Clause The Commerce Clause describes an enumerated power listed in the United States Constitution ( Article I, Section 8, Clause 3). The clause states that the United States Congress shall have power "to regulate Commerce with foreign Nations, and am ...

of the United States Constitution. A similar argument was made in the Bill filed by Wirt in the Supreme Court. William Wirts arguments may have had a telling effect, for in a subsequent action,

Worcester v. Georgia ''Worcester v. Georgia'', 31 U.S. (6 Pet.) 515 (1832), was a landmark case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Native Americans from bei ...

(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 ''Seneca Nation of Indians v. Christy'', 162 U.S. 283 (1896), was the first litigation of aboriginal title in the United States by a tribal plaintiff in the Supreme Court of the United States since ''Cherokee Nation v. Georgia'' (1831). It was th ...

'' (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 The adequate and independent state ground doctrine is a doctrine of United States law governing the power of the U.S. Supreme Court to review judgments entered by state courts. Introduction It is part of the basic framework of the American le ...

s doctrine. The Act remained essentially un-litigated by tribes until ''

Federal Power Commission v. Tuscarora Indian Nation ''Federal Power Commission v. Tuscarora Indian Nation'', 362 U.S. 99 (1960), was a case decided by the United States Supreme Court which determined that the Federal Power Commission was authorized to take lands owned by the Tuscarora Indian tribe ...

'' (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:

It is certain that if 5 U.S.C. § 177is applicable ... the mere 'expressed consent' of Congress would be vain and idle. For § 177 at the very least contemplates the assent of the Indian nation or tribe. ... follows that the mere consent of Congress, however express and specific, would avail nothing. Therefore, if § 177 is applicable ... the result would be that the Tuscarora lands, however imperative for the project, could not be taken at all.

This dicta inspired '' Oneida Indian Nation of N.Y. State v. Oneida Cnty.'' (1974) ''Oneida I''" 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. 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 Ratification is a principal's approval of an act of its agent that lacked the authority to bind the principal legally. Ratification defines the international act in which a state indicates its consent to be bound to a treaty if the parties inten ...

nonjusticiability Justiciability concerns the limits upon legal issues over which a court can exercise its judicial authority. It includes, but is not limited to, the legal concept of standing, which is used to determine if the party bringing the suit is a party ...

.'' Oneida Cnty. v. Oneida Indian Nation of N.Y. State'', 470 U.S. 226 (1985). 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. In the case of the

Narragansett land claim The Narragansett land claim was one of the first litigations of aboriginal title in the United States in the wake of the U.S. Supreme Court's landmark '' Oneida Indian Nation of New York v. County of Oneida'' (1974), or ''Oneida I'', decision. Th ...

(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. Similarly, in '' Mohegan Tribe v. Connecticut'' (D. Conn. 1982), Congress approved the creation of the Mohegan Sun after the court struck the defendant's affirmative defenses. With the

Mashantucket Pequot Tribe The Mashantucket Pequot Tribal Nation is a federally recognized American Indian tribe in the state of Connecticut. They are descended from the Pequot people, an Algonquian-language tribe that dominated the southern New England coastal areas, and ...

and Wampanoag, 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.

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.

More recently, the Second Circuit has stated:

In order to establish a violation of the Non-Intercourse Act, the laintiffsare 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.

;Tribal status The ''Passamaquoddy'' and ''Narragansett'' cases, supra, are examples where the plaintiff has prevailed despite not being

federally recognized tribes This is a list of federally recognized tribes in the contiguous United States of America. There are also federally recognized Alaska Native tribes. , 574 Indian tribes were legally recognized by the Bureau of Indian Affairs (BIA) of the Unite ...

(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. 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). Alternatively, the action may be stayed until the

Bureau of Indian Affairs The Bureau of Indian Affairs (BIA), also known as Indian Affairs (IA), is a United States federal agency within the Department of the Interior. It is responsible for implementing federal laws and policies related to American Indians and Al ...

makes a tribal status determination (and eventually dismissed if the BIA concludes the plaintiffs are not the successors in interest). The Pueblo were initially interpreted not to be "Indians" for the purposes of the Nonintercourse Act; however, this holding was subsequently overruled. The elements given above are for a tribe. The United States, acting in its capacity as a trustee, may (and has, successfully) bring an action on behalf of a tribe. The federal government was vested with similar power to enforce the anti-alienation provisions of the Allotment Acts. Conversely, individual Indians have no standing under the Act. This is true even if individual plaintiffs attempt the certify a class of all tribal members; the tribe itself must sue. ;Covered land Unlike the

, the Nonintercourse Act applies to land within the boundaries of a state, including the original thirteen. 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 original thirteen. No defendant has yet persuaded a court otherwise. However, the defendant will defeat this element if the challenged conveyance occurred before 1790. The

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. 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. For example, the conveyances at issue in ''

Johnson v. M'Intosh ''Johnson v. M'Intosh'', 21 U.S. (7 Wheat.) 543 (1823), is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, th ...

'' (1823) occurred on July 5, 1773 and October 18, 1775, but neither party to the suit was indigenous. ;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 Alienated land is that which has been acquired from customary landowners by the government, either for its own use or for private development requiring a mortgage or other forms of guarantees. The term refers historically to the appropriation of cus ...

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 Plenary is an adjective related to the noun plenum carrying a general connotation of fullness. Plenary may also refer to: *Plenary session or meeting, the part of a conference when all members of all parties are in attendance **Plenary speaker, ...

. ;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 Indian termination is a phrase describing United States policies relating to Native Americans from the mid-1940s to the mid-1960s. It was shaped by a series of laws and practices with the intent of assimilating Native Americans into mainstream ...

. Since ''

'' (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.

Affirmative defenses

Courts have considered and rejected several

affirmative defense An affirmative defense to a civil lawsuit or criminal charge is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's ...

s to Nonintercourse Act suits. However, there are two affirmative defenses that have been accepted by some courts: state sovereign immunity and the equitable doctrine of laches. ;State sovereign immunity The structure of the original Constitution and the text of the Eleventh Amendment gives states sovereign immunity from most suits; 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 ''Ex parte Young'', 209 U.S. 123 (1908), is a United States Supreme Court case that allows suits in federal courts for injunctions against officials acting on behalf of states of the union to proceed despite the State's sovereign immunity, when ...

'' (1908). In several cases, Nonintercourse Act plaintiffs have satisfied one of these exceptions. However, the Nonintercourse Act itself does not abrogate state sovereign immunity. Moreover, the authority is clear that the ''Ex parte Young'' exception does not apply. Therefore, plaintiffs must obtain the intervention of the federal government or relegate themselves to suing local governments and private land owners. Further, in actions against states, Indians are not entitled to the presumption of 25 U.S.C. § 194, which applies only to "persons." ;Laches Four dissenting justices would have barred the tribes action based on '' laches'' in '' Oneida County v. Oneida Indian Nation of N.Y. State'' (1985), a question the majority did not reach. 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. ''Cayuga'' erased a damage award of $247.9 million, the largest ever awarded under the Act.

Other provisions

Definition of Indian country

In addition to regulating relations between Indians living on Indian land and non-Indians, the 1834 Act identified an area known as " Indian country". This land was described as being "all that part of the United States west of the Mississippi and not within the states of Missouri and Louisiana, or the territory of Arkansas." This is the land that became known as Indian Territory.

Trading posts

One of the most defining aspects of the acts was the establishment of a series of "

factories A factory, manufacturing plant or a production plant is an industrial facility, often a complex consisting of several buildings filled with machinery, where workers manufacture items or operate machines which process each item into another. Th ...

" which were officially licensed

trading post A trading post, trading station, or trading house, also known as a factory, is an establishment or settlement where goods and services could be traded. Typically the location of the trading post would allow people from one geographic area to tr ...

s where Native Americans were to sell their merchandise (particularly furs). The factories, which officially were set up to protect the tribes from unscrupulous private traders, were to be used as leverage to cause the tribes to cede substantial territory in exchange for access to the "factory" as happened with the Treaty of Fort Clark in which the

Osage Nation The Osage Nation ( ) ( Osage: 𐓁𐒻 𐓂𐒼𐒰𐓇𐒼𐒰͘ ('), "People of the Middle Waters") is a Midwestern Native American tribe of the Great Plains. The tribe developed in the Ohio and Mississippi river valleys around 700 BC along ...

exchanged most of Missouri in order to access Fort Clark.

Property claims

According to U.S. Attorney General William Wirt:

e United States agree to pay he Creek Indianscertain specific sums of money, out of which payments there is a reservation of $5,000 to satisfy claims for property taken by individuals of the said nation from the citizens of the United States subsequent to the treaty of Colerain, which has been or may be claimed and established agreeably to the provisions of the act for regulating trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.

State nonintercourse acts

The Nonintercourse Act did not pre-empt the states from legislating additional restraints on alienation of Native American lands. Many states, including nearly all of the original Thirteen, enacted similar statutes for at least some lands during at least some time periods. Other state statutes, or constitutional provisions, incorporated the English common law as it had evolved up to that point. ;New York A New York State enacted March 31, 1821 provided:

shall be unlawful for any person or persons, other than Indians, to settle or reside upon any lands belonging to or occupied by any nation or tribe of Indians within this state; and that all leases, contracts and agreements made by any Indians, whereby any person or persons, other than Indians, shall be permitted to reside upon such lands, shall be absolutely void; and if any person or persons shall settle or reside on any such lands, contrary to this act, it shall be the duty of any judge of any court of Common Pleas of the county within which such lands shall be situated, on complaint made to him, and on due proof of the fact of such settlement or residence, to issue his warrant, under his hand and seal, directed to the sheriff of such county, commanding him, within ten days after the receipt thereof, to remove such person or persons so settling or residing, with his, her or their families, from such lands.

;South Carolina A 1739 South Carolina Provincial Council statute required a license from the Crown or Governor for a private party to purchase lands from Indians.An Act to restrain and prevent the purchasing Lands from Indians, 1 The First Laws of the State of South Carolina 160-161 (J. Cushing ed. 1981).

Notes

References

*Susan C. Antos, Comment, Indian Land Claims Under the Nonintercourse Act, 44 Alb. L. Rev. 110 (1979). *John Edward Barry, Comment, ''Oneida Indian Nation v. County of Oneida'': Tribal Rights of Action and the Indian Trade and Intercourse Act, 84 Colum. L. Rev. 1852 (1984). *Robert N. Clinton & Margaret Tobey Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17 (1979). *Daniel M. Crane, Congressional Intent or Good Intentions: The Inference of Private Rights of Action Under the Indian Trade and Intercourse Act, 63 B.U. L. Rev. 853 (1983). *William E. Dwyer, Jr., Land Claims under the Indian Nonintercourse Act: 25 U.S.C. 177, 7 B. C. Envtl. Aff. L. Rev. 259 (1978). *Francis J. O'Toole & Thomas N. Tureen, State Power and the Passamaquoddy Tribe: A Gross National Hypocrisy, 23 Me. L. Rev. 1 (1971). *Francis Paul Purcha, ''America Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts 1790—1834'' (1962). *Deborah A. Rosen, Colonization Through Law: The Judicial Defense of State Indian Legislation, 1790–1880, 46 Am. J. Legal Hist. 26 (2004).

External links

*Text of the Acts
179017931796179918021834Indian Trade and Intercourse Act in Chickasaw History
- Chickasaw.TV {{George Washington Intercourse Act Legal history of the United States Indian Territory Pre-statehood history of Oklahoma Presidency of George Washington Acts of the 1st United States Congress Aboriginal title in the United States 1790 in American law 1793 in American law 1796 in American law 1799 in American law 1802 in American law 1834 in American law 7th United States Congress 23rd United States Congress