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Mohegan Tribe v. Connecticut

decided: December 17, 1980.


Interlocutory appeal under 28 U.S.C. § 1292(b) from an order of the United States District Court for the District of Connecticut, Blumenfeld, J ., denying a motion to dismiss an action for possession of land on the ground that the land involved was within the coverage of the Nonintercourse Statute, 25 U.S.C. § 177, and its predecessors. Affirmed.

Before Feinberg, Chief Judge, and Lumbard and Oakes, Circuit Judges.

Author: Lumbard

This appeal requires us to decide whether the Nonintercourse statute,*fn1 which, since 1790, has prohibited the sale of Indian land unless conveyed by a treaty approved by the federal government applies to land throughout the United States. The appeal arises out of a suit brought against the State of Connecticut in the District Court for Connecticut by the Mohegan Tribe of Indians to regain possession of some 2,500 acres of land in the Town of Montville, Connecticut. In its defense, the State of Connecticut filed a motion to dismiss the suit on the ground that the Nonintercourse statute was intended to apply only to land in "Indian country" and thus did not protect the land at issue here. Judge Blumenfeld denied the State's motion, holding that the statute was meant to apply to Indian lands throughout the United States. Mohegan Tribe v. State of Connecticut, 483 F. Supp. 597 (D.Conn.1980). At the State's request, Judge Blumenfeld certified the question of the statute's geographic applicability for appeal pursuant to 28 U.S.C. § 1292(b), and we consented to hear it. We find ourselves in substantial agreement with the reasoning of the district court and therefore affirm.

In the past few years numerous suits have been brought by Indian tribes still residing in the eastern parts of the United States.*fn2 These tribes have asserted claims to large tracts of land in the East, thereby throwing into uncertainty the validity of land titles throughout the area.

These suits have been based upon the claim, after a century and a half of occupation by non-Indians, that the states in the East entered into treaties with and purchased land from Indian tribes after the passage of the Nonintercourse statute, which by its terms apparently forbade such transactions without the participation of the federal government. To date, the Indians have been largely successful in their legal battles regarding their claims to the eastern lands. Defenses based upon state adverse possession laws and state statutes of limitation have been consistently rejected.*fn3 The only grounds upon which the States have thus far succeeded in defeating Indian claims is in demonstrating that plaintiffs in these suits do not properly represent an existing tribe which can be proved to be the legitimate descendant of the original landholding tribe.*fn4

In these suits, defendant states have marshalled historical evidence which suggests that the eastern Indian tribes and their lands were always understood to be under the jurisdiction of the states. While these arguments have been held to be unavailing in a number of other contexts, such as whether the eastern tribes were properly considered "tribes" under the protection of the federal government,*fn5 and whether they were considered "tribes" for purposes of sovereign immunity to suit,*fn6 until this action, no court has had to address directly the issue of whether the Nonintercourse statute was intended to apply to land held by the eastern tribes. The State's argument is admittedly appealing in that it would explain why both the states and the federal government have ignored so completely what the Indians assert to be the dictates of the Nonintercourse statute. To determine the question of the geographic applicability of the Nonintercourse statute, however, it is necessary to trace the history of the Indian statutes and relevant aspects of Indian land tenure in this country.


In the Royal Proclamation of 1763, the British Crown declared that the power to "grant Warrants of Survey, or pass Patents" for land in the American territory resided solely in the Crown and not in the Governors or Commanders in Chief of the Colonies. The lands were "reserved to the ... Indians" unless the sovereign was to decide otherwise. 1 Laws U.S. 443-48.*fn7 Moreover, the Proclamation, for apparently the first time, established a boundary line between the Indian territory or "Indian country" and the lands of the colonists. Trade which occurred beyond the line could only be conducted with the consent of the Crown. At the same time, land grants throughout the American territories were solely within the authority of the sovereign: grants "upon any Lands whatever, which, not having been ceded to or purchased by us as aforesaid, are reserved to the said Indians, or any of them." Id. Thus, the policy of the Royal Proclamation was to demarcate an "Indian country" within which trading could only be conducted with the approval of the Crown, and to establish that all grants of land from the Indians would be valid only with the approval of the sovereign.

During the Revolution and prior to the Articles of Confederation, the Continental Congress created a Department of Indian Affairs in 1775. The jurisdiction of the Department was divided into three areas, again all lying along the border of so-called "Indian country." 1 Laws U.S. 597. It was not until after the adoption of the Articles of Confederation in 1781, however, that the policy of the colonies toward Indian trade and, in particular, toward alienation of Indian lands was codified. First it is essential to note that Article IX of the Articles of Confederation gave the central government exclusive power over Indian affairs with the limitation that such power could not be exercised in such a manner as to infringe upon the "legislative right" of any state. Thus, in the Resolve of 1783, 1 Laws U.S. 607-08, Congress affirmed the prior policy of the Royal Proclamation of 1763 by establishing that all land transactions with the Indians would be invalid unless approved by the federal government, but it limited the effect of the Resolve to lands "without the limits or jurisdiction" of the states. Id.

Federal policy during the Confederation thus continued the requirement that dealings with the Indians respecting land sales would only be valid if accomplished with the authority and approval of the central government. However, due to the division of authority between the states and the central government as established in the Articles of Confederation, federal authority was limited to transactions with Indians outside the "limits or jurisdiction" of the states. On this point the Resolve of 1783 specifically referred to the division of powers established in the Articles of Confederation. See id.

The limitations on federal authority to deal with Indian affairs contained in Article IX of the Articles of Confederation created uncertainty over the relative spheres of federal and state authority and were removed in the Constitution. Instead, the Constitution granted Congress the authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S.Const. art. I, § 8, cl. 3. Thus, Congress was granted plenary authority to regulate trade with the Indian tribes throughout the United States.*fn8

In 1790, Congress enacted the first of the Indian Trade and Intercourse Acts. Act of July 22, 1790, ch. 33, 1 Stat. 137 ("1790 Act"). The majority of sections of the Act established a system of licensing for trade with the Indians and imposed federal authority over crimes committed on Indian property. Section 4 of the Act contained the first Nonintercourse statute:

And be it enacted and declared, That 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 statute thus continued the policy of placing authority to extinguish Indian land rights in the sovereign.

In order to appreciate the meaning of the first Nonintercourse statute, the peculiar nature of Indian land tenure in the United States must be noted.*fn9 In accordance with the "right of discovery" of the European settlers, native Indians found in this country were granted the "right of occupancy" to their lands. That is, the natives were allowed to remain upon their lands, but their freedom to alienate those lands was restricted. The land could be sold only to the European settlers or the governmental authority representing those settlers. This would prevent, for example, Indians from selling their lands to another foreign government, hostile to the settlers. Thus, while the Indians retained the "right of occupancy," the settlers retained the "fee interest" in the land and retained a "pre-emptive right" to purchase the land from the Indians. After the Revolution, this "pre-emptive right" lay in the individual states at least in the already settled part of the country. And when the states joined the Union, unless they ceded the lands, they retained their "pre-emptive rights." Nevertheless, the right to purchase Indian lands was not inconsistent with federal control over the extinguishment of Indian occupancy. Thus, the first Nonintercourse statute provided that even where the states retained "pre-emptive rights" to purchase the land, the federal government was responsible for overseeing any transfer of land from the Indians to the states.

The provisions of the Indian Trade and Intercourse Act of 1790 were amended and reenacted five times.*fn10 In 1793, Congress supplanted the Act of 1790, and continued the regulation of trade with the Indian tribes, providing in more detail for the licensing of such trade and for the enforcement of criminal law on Indian property. More important for our purposes, section 8 of the 1793 Act continued the Nonintercourse statute with minor changes:

And be it further enacted, That no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe or 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 of convention entered into pursuant to the constitution ... Provided nevertheless, That it shall be lawful for the agent or agents of any state, who may be present at any treaty, held with Indians under the authority of the United States, in the presence, and with the approbation of the commissioner or commissioners of the United States, appointed to hold the same, to propose to, and adjust with the Indians, the compensation to be made for their claims to lands within such state, which shall be extinguished by the treaty.

When reenacted in 1796, the Act, for the first time, contained in its first section the description of a boundary line "established by treaty between the United States and various Indian tribes," extending from Lake Erie down the Cuyahoga and Ohio Rivers, through Kentucky and eventually to South Carolina, delineating settled territory from "Indian country." The first section also contained a proviso that:

if the boundary line between the said Indian tribes and the United States, shall, at any time hereafter, be varied, by any treaty which shall be made between the said Indian tribes and the United States, then all the provisions contained in this act, shall be construed to apply to the said line so to be varied, in the same manner, as the said provisions now apply to the boundary line herein before recited.

1796 Act, § 1. Again a licensing system was imposed for trade beyond the boundary, and crossing the boundary for certain purposes was prohibited. The Nonintercourse statute, with essentially the same language as in the 1793 Act, became section 12 of the 1796 Act. The Trade and ...

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