Aboriginal title in the United States
The
The power of Congress to extinguish aboriginal title—by "purchase or conquest," or with a
Large-scale compensatory litigation first arose in the 1940s, and possessory litigation in the 1970s.
History
Before 1776
Before 1763, the Colonial history of the United States was characterized by private purchases of lands from Indians. Many of the earliest deeds in the Eastern states purport to commemorate such transactions.
The
The Royal Proclamation was among the enumerated complaints in the Declaration of Independence:
He has endeavoured to prevent the Population of these States; for that Purpose ... raising the Conditions of new Appropriations of Lands.
1776–1789
The Confederation Congress Proclamation of 1783 prohibited the extinguishment of aboriginal title without the consent of Congress. But, the states, particularly New York, purchased lands from tribes during this period without the consent of the federal government. These purchases were not tested in court until the 1970s and 1980s, when the Second Circuit held that the Confederation Congress had neither the authority under the Articles of Confederation nor the intent to limit the ability of states to extinguish aboriginal title within their borders; thus, the Proclamation was interpreted to apply only to the federal territories.
Since 1789
States had lost the ability to extinguish aboriginal title with the ratification of the
Marshall Court
The
Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Mitchel v. United States (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. In both cases, the Marshall Court continued to apply the rule that aboriginal title was
Removal era
The Indian Removal Act of 1830 established policy that resulted in the complete extinguishment of aboriginal title in Alabama and Mississippi (1832); Florida and Illinois (1833); Georgia, North Carolina, and Tennessee (1835) [the Treaty of New Echota]; Indiana (1840); and Ohio (1842).[4]
Reservation, treaty, and termination eras
This shift in policy resulted in all tribal lands being either ceded to the federal government or designated as an Indian reservation in Iowa, Minnesota, Texas, and Kansas by 1870; Idaho, Washington, Utah, Oregon, Nevada, Wyoming, Nebraska, and Colorado by 1880; and Montana, Arizona, and New Mexico by 1886.[5] Whereas, "it had taken whites 250 years to purchase the Eastern half of the United States, ... they needed less than 40 years for the Western half."[5] Unlike the Eastern purchases, "some of the transactions in the West involved immense areas of land. More than 75 percent of Nevada, for example, was acquired in two bites; the large majority of Colorado in three. It was not long before the West was dotted with Indian reservations."[5]
Congress banned further Indian treaties by statute in 1871, but treaty-like instruments continued to be used to alienate Indian land and designate the boundaries of reservations.
In 1887, the Dawes Act introduced an allotment policy, whereby communal reservation lands were divided into parcels held in fee simple (and thus alienable) by individual Indians, with the "surplus," as declared by the government, sold to non-Indians. Allotment ended in 1934.[8]
1940s—present
The Alaska Native Claims Settlement Act (1971) extinguished all aboriginal title in Alaska (although the legitimacy of the act remains disputed by some Alaskan natives[9][10]). Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island (1978) and Maine (1980).
According to Prof. Stuart Banner:
- [T]he story of Indians and land over the past sixty years has primarily been that of tribes' efforts to get land back, or to be compensated for land wrongfully taken. Indians have directed land claims at every branch of the federal government—at Congress, at the courts, at the Interior Department, and, for the 1940s to the 1970s, at the purpose-built administrative agency called the Indian Claims Commission. Some of these claims have been remarkably successful, culminating either directly in court judgements or indirectly in legislative settlements.[11]
Sources of law
Federal
Constitution of the United States
U.S. Const. art. I, § 8, cl. 3 provides:
[The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;
Federal treaties
Federal statutes
Relevant federal statutes include:
- Royal Proclamation of 1763 (British North America)
- Confederation Congress Proclamation of 1783 (Articles of Confederation-era)
- Northwest Ordinance (1787)
- Nonintercourse Act (1790, 1793, 1796, 1799, 1802, 1834)
- Indian Removal Act (1830)
- Dawes Act (1887)
- Curtis Act of 1898
- Indian Reorganization Act (1934)
- Indian Claims Commission Act (1946)
- Alaska Native Claims Settlement Act (1971)
- Indian Land Claims Settlements (1978–2006)
- Indian Claims Limitations Act (1982)
State constitutions and statutes
New York
N.Y. Const. of 1777 art. XXXVII provided:
And whereas it is of great importance to the safety of this State that peace and amity with the Indians within the same be at all times supported and maintained; and whereas the frauds too often practiced towards the said Indians, in contracts made for their lands, have, in divers instances, been productive of dangerous discontents and animosities: Be it ordained, that no purchases or contracts for the sale of lands, made since the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, or which may hereafter be made with or of the said Indians, within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority and with the consent of the legislature of this State.
N.Y. Const. of 1821 art. VII, § 12 provided:
[Indian lands.]—No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which may hereafter be made, of or with the Indians in this state, shall be valid, unless made under the authority, and with the consent, of the legislature.
N.Y. Const. of 1846 art. I, § 16 provided:
[Indian lands.]—No purchase or contract for the sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which may hereafter be made, of or with the Indians, shall be valid unless made under the authority and with the consent of the legislature.
N.Y. Const. of 1894 art. 1, § 15 and N.Y. Const. of 1938 art I. § 13 provided:
[Purchase of lands of Indians.]-No purchase or contract for the sale of lands in this State, made since the fourteenth day of October, one thousand seven hundred and seventy-five; or which may hereafter be made, of, or with the indians, shall be valid, unless made under the authority, and with the consent of the Legislature.
§ 13 was repealed on November 6, 1962, by popular vote.
Doctrine
Acknowledgement
The test for the acknowledgement of aboriginal title in the United States is actual, exclusive and continuous use and occupancy for a "long time".[12] Unlike nearly all common law jurisdictions, the United States acknowledges that aboriginal title may be acquired post-sovereignty; a "long time" can mean as little as 30 years.[13] However, the requirement of exclusivity may prevent any tribe from claiming aboriginal title where multiple tribes once shared the same area.[14] Improper designation of an ancestral group may also bar acknowledgement.[15]
'Cramer v. United States' (1923) was the first Supreme Court decision to acknowledge the doctrine of individual aboriginal title, not held in common by tribes.
Content
Where tribal land has previously been dispossessed, the tribe cannot unify its aboriginal title with purchased fee simple to reconstitute "
Courts has not been receptive to the view that aboriginal title was converted to fee simple during the rule of other countries (e.g. Russia in Alaska).[24]
The Nonintercourse Act does not prohibit leases.[25]
Extinguishment
The modern test for extinguishment of aboriginal title was most thoroughly explained in
Extinguishment retroactively validates trespasses and removals of resources from aboriginal lands, and thus bars compensation (either statutory or constitutional) for those encroachments.[35]
Since 1790, states have not been able to extinguish aboriginal title. They cannot even foreclose on tribal lands due to the non-payment of taxes.[36] However, extinguishment by state governments before between independence and 1790 is generally valid.[37] The Second Circuit has held that states retained the power to purchase land directly from tribes during the Articles of Confederation period, and thus those purchases remain valid even if un-ratified by the federal government.[38]
The infamous
The rule of construction against extinguishment, even in the face of overlapping land grants, was based on the assumption that Congress would not lightly extinguish due to its "
Extinguishment can be accomplished through
The Grand Canyon National Park Enlargement Act is an example of an act extinguishing aboriginal title.[53]
By geography
East of Mississippi
Indian removal policy resulted in the complete extinguishment of aboriginal title in Alabama and Mississippi (1832), Florida and Illinois (1833), Georgia, North Carolina, and Tennessee (1835) [the Treaty of New Echota], Indiana (1840), and Ohio (1842).[4]
Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island in 1978[54] and Maine in 1980.[55] Similar, but non-statewide, acts extinguished some aboriginal title in Connecticut, Florida, Massachusetts, and New York.
The Vermont Supreme Court has held, in actions where aboriginal title was raised as a defense by criminal defendants, that all aboriginal title in Vermont was extinguished when Vermont became a state.[56] Commentators have criticized these decisions as inconsistent with federal law.[57]
Some eastern states argued that the Nonintercourse Act did not apply in the original colonies, or at least not in tribal areas surrounded by settlements. The First and Second Circuits have rejected this view, holding that the act applied in the entire United States.[55][58]
-
Indian cessions in Iowa
-
Major Native American land cessions that resulted in what is now Michigan
-
Land purchases in Pennsylvania
-
Removal of the Five Civilized Tribes
Louisiana Purchase and Texas
Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Iowa, Minnesota, Texas, and Kansas by 1870, Wyoming, Nebraska, and Colorado by 1880, and Montana by 1886.[5]
The Fifth Circuit has held that the
Mexican Cession
Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Utah and Nevada by 1880, and Arizona and New Mexico by 1886.[5]
California was different. There, the Land Claims Act of 1851 required "each and every person claiming lands in California by virtue of any right or title derived by the Mexican government" to file their claim within two years.[61] Despite early authority to the contrary,[62] the established view is that the Act applied to aboriginal title, and thus extinguished all aboriginal title in California (as no tribes are known to have filed claims).[63] Cramer v. United States (1926) has distinguished this line of cases for individual aboriginal title.[16]
The above commentary is challenged below. In 1833, the Mexican government gave tribal communities a brief notice that they had the option to make modest claims upon Mission lands before each mission was closed and its property sold off. Most Spanish residents in the state failed to inform the tribal members of their rights to claim land, or had already driven most of the Mission Indians into the Sierras. In addition, once California became a state, federal rules required that Indian communities interact exclusively with the federal government. The 1894 U.S. Government report California Indian Reservations and Cessions includes the lost 18 treaties made between California tribes and the U.S. military that were then made secret by an act of Congress shortly after the treaties were forced upon at gunpoint by the U.S. Army on all of the state's tribes with the promise of lands.
Oregon territory
Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Idaho, Washington, and Oregon in 1880.[5]
Alaska
The Alaska Native Claims Settlement Act (ANCSA) extinguished all aboriginal title in Alaska in 1971.[64] Moreover, ANCSA extinguished every claim "based on" aboriginal title, such as trespass and breach of fiduciary duty (and even the extinguishment of these did not constitute a taking).[65][66] ANCSA has been interpreted not to apply offshore lands,[67][68] although it did extinguish some rights to hunt and fish offshore.[69]
Other
Submerged lands
Title to the bed and banks of rivers, and the mineral rights therein, generally passes to states upon their gaining statehood.[70] However, this general doctrine does not apply where a tribe held treaty rights to the bed prior to statehood.[71] Additionally, tribes can gain title to dry lands formerly covered by rivers after a river changes course.[72] The United States can sue on behalf of tribes to gain title to those lands.[73]
The
Aboriginal title is absolutely extinguished to offshore submerged lands in the
Guam
The Ninth Circuit assumed by did not decide that unextinguished aboriginal title remains in Guam, but held that the government of Guam had no standing to assert it.[77]
Possessory cause of action
For the first 100 years of the
The situation changed dramatically in the 1970s and 1980s.
Oneida I and Oneida II opened the doors of the federal courts to dozens of high-profile land claims, especially in the former Thirteen Colonies, where tribal land continued to be purchased by the states without federal approval after the passage of the Constitution and the Nonintercourse Act.[82] Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1975) held that (even unrecognized) tribes could sue the federal government to compel it to bring suits against the state governments to vindicate Indian land claims.[55]
To have standing, plaintiffs must prove that the surviving tribal organization is the successor in interest to the historical tribe. Mashpee Tribe v. New Seabury Corp. (1979) is an example of a claim defeated by disproving this element.[83] The First Circuit has also held that the cause of action under the Nonintercourse Act accrues only to tribes, not individuals;[84] moreover, where a jury finds against tribal status, non-federally-recognized tribes are not entitled to reverse that holding as a matter of law.[85]
In suits against private parties, the United States is not a
Compensatory causes of action
Constitutional
The
Tillamooks I (1946) was the closest the Supreme Court ever came to holding that unrecognized aboriginal title is property under the Fifth Amendment. Although the suit had been instituted under a special jurisdictional statute waiving the defense of sovereign immunity, the Court ordered compensation even while insisting that the statute itself had not created a property right; only the dissent referred to the Fifth Amendment.[97] According to the Ninth Circuit in Miller v. United States (1947), Tillamooks I held that even unrecognized aboriginal title is property under the Fifth Amendment, the extinguishment of which requires just compensation.[98] Although the issue was not raised in the case, a footnote in Hynes v. Grimes Packing (1949) repudiated the 9th Circuit view and insisted that aboriginal title was non-compensable.[99] Tillamooks II (1951) appeared to accept the Hynes view by denying interest to the compensation paid on remand following Tillamooks I.[100]
Tee-Hit-Ton Indians v. United States (1955) finally held that unrecognized aboriginal title was not property within the meaning of the Fifth Amendment, and thus could be extinguished without compensation.[101] Even the partition of a reservation does not implicate the Takings Clause,[102] nor the modification of ANCSA.[103] Recognized Indian title, unlike original Indian title, may give rise to Taking claims.[104] The claims court has sometimes refused takings claims, and thus denied interest, even where tribes were acknowledged to hold fee simple.[105]
Statutory
The Nonintercourse Act (discussed below) creates a trust relationship between tribes and the federal government, which is not easy to terminate.
Prior to 1946, Native American land claims were explicitly barred from Claims Courts by statute.
In claims court, lands are valued at the date of purchase, not at present value, and without interest.
Affirmative defenses
Immunity
Federal sovereign immunity
Because of the ease with which the federal government may extinguish aboriginal title, and the fact that it may constitutionally do so without compensation, meritorious claims against the federal government are difficult to construct. Federal Power Commission v. Tuscarora Indian Nation (1960) held that the Nonintercourse Act did not apply to the federal government.[122]
Additionally, the federal government cannot be sued without its consent. The federal government has consented to some compensatory suits under the Indian Claims Commission Act, supra, subject to a statute of limitations. Nor can the states sue the federal government in its capacity as guardian of the tribes.
- State sovereign immunity
The vast majority of allegedly illegal expropriation of tribal lands has occurred at the hands of states; however, regardless of the merits of these claims, states generally may not be sued.[127] The Eleventh Amendment, and the broader principle of state sovereign immunity derived from the structure of the Constitution, bars most suits against states without their consent. Although states may sue other states, the Supreme Court ruled in Blatchford v. Native Vill. of Noatak (1991) that tribes—even though they also enjoy sovereign immunity—have no greater ability to sue states than private individuals.[128] There are several exceptions to state sovereign immunity potentially relevant to aboriginal title claimants: the doctrine of Ex parte Young (1908), Congressional abrogation of state sovereign immunity by statute, and the ability of the federal government itself to sue states.
While—under Ex parte Young—tribes may obtain some prospective, equitable relief in suits nominally against state officials (generally, for treaty rights),[129] the Supreme Court in Idaho v. Coeur d'Alene Tribe (1997) held that state sovereign immunity barred not only quiet title suits but also suits against state officials which would constitute the equivalent of quiet title.[125] Although Coeur d'Alene involved sovereign title to a lake bed, this precedent has been applied to bar even suits against states in their capacity as ordinary property owners.[130]
There are at least two Congressional statutes which may have contemplated authorizing aboriginal title suits against states: the
Finally, the federal government may bring suits against states on behalf of the tribes in its guardian capacity, as it historically has.[126][135] Similarly, tribes may intervene in suits brought by the federal government (or the federal government may intervene in suits brought by the tribes) against states.[136] This exception is rather narrow, and states may assert sovereign immunity where tribes assert different claims, or ask for different relief, than the federal government.[137]
Delay
Statute of limitations/adverse possession
State statute of limitations do apply, however, for tribal actions under state law, such as quiet title, even if based on aboriginal title.[139] Similarly, the Supreme Court in 1907 declared that, for the sake of stability in property law, that it would defer to state court interpretations of Indian treaties.[140]
Laches
In Oneida II, the four dissenting justices would have applied
Building on Sherrill, the
No other Circuit has adopted the Second Circuit's expansive view of Sherrill. The Third, Sixth, Eighth, and Tenth Circuits, since Sherrill, have declined to reach the question of the scope of laches as a defense to ancient tribal claims.[33][147][148][149][150] The First Circuit has limited Sherrill to assertions of sovereignty,[151] in an opinion that was reversed on other grounds.[152] Some district courts take the First Circuit's view;[153][154] others the Second Circuit's;[155][156][157] others strike a middle ground.[158]
Relationship to other rights
Aboriginal title is distinct from recognized Indian title, where the United States federal government recognizes tribal land by treaty or otherwise. Aboriginal title is not a prerequisite to recognized title.[159]
The relationship between aboriginal title and reservations is unclear.[160] Often, courts will not reach the question of aboriginal title, if the same land is found to comprise part of an Indian reservation.[126] Some reservations were created in a process that extinguished aboriginal title.[161] Although Congress has the power to grant tribes land in fee simple, some reservations may continue to be held in aboriginal title.[162]
The old view was that the extinguishment of aboriginal title extinguished all tribal rights to the same land.[163] The current view is that usufructuary rights pursuant to a treaty may survive the extinguishment of aboriginal title.[164] However, such usufructs may be lost when tribes cede land to the federal government.[165] Certain usufructs may be extinguished by implication.[166]
See also
- Checkerboarding (land)
- Diminishment
- Land Buy-Back Program for Tribal Nations
- Off-reservation trust land
- Tribal sovereignty in the United States
Notes
- ^ Banner, 2005, p. 180.
- ^ Banner, 2005, p. 171--72, 179.
- ^ Kades, 148 U. Pa. L. Rev. at 1092--93.
- ^ a b Banner, 2005, p. 226.
- ^ a b c d e f Banner, 2005, p. 235.
- ^ Banner, 2005, p. 251.
- ^ Banner, 2005, pp. 235--36.
- ^ Banner, 2005, pp. 287--88.
- ^ "Alaska History and Cultural Studies - Alaska's Cultures - ANCSA: What Political Process? - Paul Ongtooguk". Archived from the original on August 21, 2011. Retrieved August 29, 2011.
- ^ "How can AFN be the voice of Natives when its officers are not elected?". www.alaskool.org.
- ^ Banner, 2005, p. 291.
- ^ Confederated Tribes v. United States, 177 Ct. Cl. 184, 194 (1966).
- ^ Alabama-Coushatta Tribe of Texas v. U.S., 2000 WL 1013532 (Fed. Cl.).
- ^ Strong v. United States, 207 Ct.Cl. 254 (1975).
- ^ a b Turtle Mountain Band of Chippewa Indians v. U. S., 203 Ct.Cl. 426 (1974).
- ^ a b Cramer v. United States, 261 U.S. 219 (1923).
- ^ United States v. Lowry, 512 F.3d 1194 (9th Cir. 2008).
- ^ United States v. Hensher, 1996 WL 539113 (9th Cir.) (unreported).
- ^ City of Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197 (2005) ["Oneida III"].
- ^ Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998).
- ^ Hagen v. Utah, 510 U.S. 399 (1994).
- ^ U.S. v. Unzeuta, 281 U.S. 138 (1930).
- ^ Alaska v. Native Village of Venetie Tribal Government, 522 U.S. 520 (1998).
- ^ Aleut Community of St. Paul Island v. U. S., 202 Ct.Cl. 182 (1973).
- ^ San Xavier Development Authority v. Charles, 237 F.3d 1149 (9th Cir. 2001).
- ^ Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823).
- ^ United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941).
- ^ Whitefoot v. U. S., 155 Ct.Cl. 127 (1961).
- ^ Hale v. Gaines, 63 U.S. 144 (1859).
- ^ Chouteau v. Molony, 57 U.S. 203 (1853).
- ^ Thredgill v. Pintard, 53 U.S. 24 (1851).
- ^ Clark v. Smith, 38 U.S. 195 (1839).
- ^ a b Delaware Nation v. Pennsylvania, 446 F.3d 410 (3rd Cir. 2006).
- ^ Gila River Pima-Maricopa Indian Community v. U. S., 204 Ct.Cl. 137 (1974).
- ^ U.S. v. Northern Paiute Nation, 203 Ct.Cl. 468 (1974).
- ^ Oneida Indian Nation of New York v. Madison County, Oneida County, N.Y., 605 F.3d 149 (2d Cir. 2010).
- ^ Seneca Nation of Indians v. New York, 382 F.3d 245 (2d Cir. 2004).
- ^ Oneida Indian Nation of New York v. State of N.Y., 860 F.2d 1145 (2d Cir. 1988).
- ^ Lone Wolf v. Hitchcock, 187 U.S. 553 (1903).
- ^ Beecher v. Wetherby, 95 U.S. 517 (1877).
- ^ United States v. Winans, 198 U.S. 371 (1905).
- ^ Dubuque & S.C.R. Co. v. Des Moines Valley R. Co., 109 U.S. 329 (1883).
- ^ Denn v. Reid, 35 U.S. 524 (1836).
- ^ Oglala Sioux Tribe of Pine Ridge Indian Reservation v. Homestake Min. Co., 722 F.2d 1407 (8th Cir. 1983).
- ^ United States v. Dann, 470 U.S. 39 (1985).
- ^ Temoak Band of Western Shoshone Indians, Nevada v. U.S., 219 Ct.Cl. 346 (1979).
- ^ Western Shoshone Nat. Council v. Molini, 951 F.2d 200 (9th Cir. 1991).
- ^ Pueblo of Taos v. U.S., 231 Ct.Cl. 1051 (1982).
- ^ United States v. Pend Oreille Public Utility Dist. No. 1, 926 F.2d 1502 (9th Cir. 1991).
- ^ Western Shoshone Nat. Council v. U.S., 279 Fed.Appx. 980 (Fed. Cir. 2008).
- ^ Devils Lake Sioux Tribe v. State of N.D., 917 F.2d 1049 (8th Cir. 1990).
- ^ U. S. v. Turtle Mountain Band of Chippewa Indians, 222 Ct.Cl. 1 (1979).
- ^ Havasupai Tribe v. Robertson, 943 F.2d 32 (9th Cir. 1991).
- ^ Greene v. Rhode Island, 398 F.3d 45 (1st Cir. 2005).
- ^ a b c Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1975).
- ^ State v. Cameron, 658 A.2d 939, 940 (Vt. 1995) ("Our holding in that case was made as a matter of law based on historical fact. Consequently, under the doctrine of stare decisis, Elliott is precedent binding in general, not just binding on parties to the original case ...Elliott affects all lands within Vermont's boundaries."); State v. Elliott, 616 A.2d 210, 214 (Vt. 1992) ("[A] series of historical events, beginning with the Wentworth Grants of 1763, and ending with Vermont's admission to the Union in 1791, extinguished the aboriginal rights claimed here."); id. at 218 ("The legal standard does not require that extinguishment spring full blown from a single telling event. Extinguishment may be established by the increasing weight of history.").
- ^ Gene Bergman, Defying Precedent: Can Abenaki Aboriginal Title Be Extinguished by the "Weight of History", 18 Am. Indian L. Rev. 447 (1993); John P. Lowndes, When History Outweighs Law: Extinguishment of Abenaki Aboriginal Title, 42 Buff. L. Rev. 77 (1994); Robert O. Lucido II, Aboriginal Title: The Abenaki Land Claim in Vermont, 16 Vt. L. Rev. 611 (1992); Joseph William Singer, Well Settled?: The Increasing Weight of History in American Indian Land Claims, 28 Ga. L. Rev. 481 (1994).
- ^ Mohegan Tribe v. State of Conn., 638 F.2d 612 (2d Cir. 1980).
- ^ Chitimacha Tribe of Louisiana v. Harry L. Laws Co., Inc., 490 F. Supp. 164 (W.D. La. 1980). aff'd, 690 F.2d 1157 (5th Cir. 1982).
- ^ Act of March 2, 1805, 2 Stat. 324; Act of April 21, 1806, 2 Stat. 391; Act of March 3, 1807, 2 Stat. 440; Act of March 10, 1812, 2 Stat. 692; Act of April 14, 1812, 2 Stat. 709; Act of February 27, 1813, 2 Stat. 807; Act of April 18, 1814, 3 Stat. 139; Act of April 29, 1816, 3 Stat. 328; Act of May 11, 1820, 3 Stat. 573; Act of May 16, 1826, 4 Stat. 168; Act of May 26, 1824, 4 Stat. 52 (extended to Louisiana by Act of June 17, 1844, 5 Stat. 676).
- ^ 9 Stat. 631.
- ^ Byrne v. Alas, 16 P. 523, 528 (Cal. 1888).
- ^ Super v. Work, 3 F.2d 90 (D.C. Cir.1925), aff'd, 271 U.S. 643 (1926) (per curiam); United States v. Title Insurance and Trust Co., 265 U.S. 472 (1924); Barker v. Harvey, 181 U.S. 481 (1901); United States ex rel. Chunie v. Ringrose, 788 F.2d 638 (9th Cir. 1986). See also Bruce S. Flushman & Joe Barbieri, Aboriginal Title: The Special Case of California, 17 Pac. L.J. 391 (1986).
- ^ Inupiat Community of Arctic Slope v. U.S., 746 F.2d 570 (9th Cir. 1984).
- ^ U.S. v. Atlantic Richfield Co., 612 F.2d 1132 (9th Cir. 1980).
- ^ Inupiat Community of Arctic Slope v. United States, 230 Ct.Cl. 647 (1982).
- ^ Amoco Production Co. v. Village of Gambell, AK, 480 U.S. 531 (1987).
- ^ a b People of Village of Gambell v. Hodel, 869 F.2d 1273 (9th Cir.1989).
- ^ People of Village of Gambell v. Clark, 746 F.2d 572 (9th Cir. 1984).
- ^ Montana v. United States, 450 U.S. 544 (1981); State of Alaska v. Ahtna, Inc., 891 F.2d 1401 (9th Cir. 1989); Yankton Sioux Tribe of Indians v. State of S.D., 796 F.2d 241 (8th Cir. 1986).
- ^ Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970); Muckleshoot Indian Tribe v. Trans-Canada Enterprises, Ltd., 713 F.2d 455 (9th Cir. 1983).
- ^ Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979).
- ^ United States v. Aranson, 696 F.2d 654 (9th Cir. 1983).
- ^ Confederated Tribes of Colville Reservation v. U.S., 964 F.2d 1102 (Fed. Cir. 1992).
- ^ Northern Mariana Islands v. United States, 399 F.3d 1057 (9th Cir. 2005).
- ^ Native Village of Eyak v. Trawler Diane Marie, Inc.,154 F.3d 1090 (9th Cir. 1998).
- ^ Government of Guam, ex rel. Guam Economic Development Authority v. United States, 179 F.3d 630 (9th Cir. 1999); see John Briscoe, The Aboriginal Land Title of the Native People of Guam, 26 Hawaii L. Rev. 1 (2003).
- ^ Marsh v. Brooks, 49 U.S. 223 (1850) ("[T]hat an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question.").
- ^ Seneca Nation of Indians v. Christy, 162 U.S. 283 (1896).
- ^ Oneida Indian Nation of N.Y. State v. Oneida County, 414 U.S. 661 (1974).
- ^ a b c d e Oneida County v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985).
- ^ Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51 (2d Cir. 1994).
- ^ Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir 1979).
- ^ Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979).
- ^ Mashpee Tribe v. Secretary of Interior, 820 F.2d 480 (1st Cir. 1987) (Breyer, J.).
- ^ a b Sokaogon Chippewa Community v. State of Wis., Oneida County, 879 F.2d 300 (7th Cir.1989) .
- ^ Fort Mojave Tribe v. Lafollette, 478 F.2d 1016 (9th Cir. 1973).
- ^ Coy v. Mason, 58 U.S. 580 (1854).
- ^ Cowlitz Tribe of Indians v. City of Tacoma, 253 F.2d 625 (9th Cir. 1958).
- ^ Carino v. Insular Government of Philippine Islands, 212 U.S. 449 (1909).
- ^ U.S. v. Shoshone Tribe of Indians of Wind River Reservation in Wyoming, 304 U.S. 111 (1938).
- ^ U.S. v. Creek Nation, 295 U.S. 103 (1935).
- ^ Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335 (1945).
- ^ U.S. v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938).
- ^ Sioux Tribe of Indians v. U.S., 316 U.S. 317 (1942).
- ^ Fort Berthold Reservation v. U. S., 182 Ct.Cl. 543 (1968).
- ^ United States v. Alcea Band of Tillamooks, 329 U.S. 40 (1946) ["Tillamooks I"].
- ^ Miller v. United States, 159 F.2d 997 (9th Cir. 1947).
- ^ Hynes v. Grimes Packing Co., 337 U.S. 86 (1949) .
- ^ United States v. Alcea Band of Tillamooks, 341 U.S. 48 (1951) ["Tillamooks II"].
- ^ Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).
- ^ Karuk Tribe of California v. Ammon, 209 F.3d 1366 (Fed. Cir. 2000).
- ^ Seldovia Native Ass'n, Inc. v. U.S., 144 F.3d 769 (Fed. Cir. 1998).
- ^ Zuni Indian Tribe of New Mexico v. U.S., 16 Cl.Ct. 670 (1989).
- ^ U. S. v. Cherokee Nation, 200 Ct.Cl. 583 (1973).
- ^ Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st 1975).
- ^ Oneida Tribe of Indians of Wis. v. U. S., 165 Ct.Cl. 487 (1964).
- ^ Cobell v. Norton, 240 F.3d 1081 (D.C. Cir. 2001).
- ^ Shoshone Indian Tribe of Wind River Reservation v. U.S., 364 F.3d 1339 (Fed Cir. 2004).
- ^ Yankton Sioux Tribe v. United States, 224 Ct.Cl. 62 (1980).
- ^ Miami Tribe of Oklahoma v. U. S., 222 Ct.Cl. 242 (1980).
- ^ U.S. v. Oneida Nation of New York, 217 Ct.Cl. (1978).
- ^ a b Six Nations v. U. S., 173 Ct.Cl. 899 (1965).
- ^ Coast Indian Community v. U. S., 213 Ct.Cl. 129 (1977).
- ^ Confederated Salish & Kootenai Tribes of Flathead Reservation, Mont. v. U. S., 173 Ct.Cl. 398 (1965).
- ^ Oglala Sioux Tribe of Pine Ridge Indian Reservation v. United States, 650 F.2d 140 (8th Cir. 1981).
- ^ Caddo Tribe of Oklahoma v. U. S., 222 Ct.Cl. 306 (1980).
- ^ Sac and Fox Tribe of Indians of Okl. v. U. S., 179 Ct.Cl. 8 (1967).
- ^ U. S. v. Pueblo De Zia, 200 Ct.Cl. 601 (1973).
- ^ U.S. v. Delaware Tribe of Indians, 192 Ct.Cl. 385 (1970).
- ^ Federal Power Commission v. Tuscarora Indian Nation, 362 U.S. 99, 120 (1960) ("[25 U.S.C. § 177] is not applicable to the sovereign United States ...").
- ^ Kansas v. United States, 204 U.S. 331 (1907).
- ^ Nichols v. Rysavy, 809 F.2d 1317 (8th Cir. 1987).
- ^ a b Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261 (1997).
- ^ a b c Idaho v. United States, 533 U.S. 262 (2001).
- ^ Lauren E. Rosenblatt, Note, Removing the Eleventh Amendment Barrier: Defending Indian Land Title Against State Encroachment After Idaho v. Coeur d'Alene Tribe, 78 Tex. L. Rev. 719 (2000).
- ^ Blatchford v. Native Vill. of Noatak, 501 U.S. 775 (1991).
- ^ Timpanogos Tribe v. Conway, 286 F.3d 1195 (10th Cir. 2002).
- ^ Western Mohegan Tribe and Nation v. Orange County, 395 F.3d 18 (2d Cir. 2004).
- ^ 28 U.S.C. § 1362.
- ^ Ysleta Del Sur Pueblo v. Laney, 199 F.3d 281 (5th Cir. 2000).
- ^ Seminole Tribe of Fl. v. Florida, 517 U.S. 44 (1996).
- ^ Alden v. Maine, 527 U.S. 706 (1999).
- ^ United States v. Minnesota, 270 U.S. 181 (1926).
- ^ Arizona v. California, 460 U.S. 605 (1983).
- ^ a b Oneida Indian Nation of N.Y. v. County of Oneida, 617 F.3d 114 (2d Cir. 2010).
- ^ South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986).
- ^ Spirit Lake Tribe v. North Dakota, 262 F.3d 732 (8th Cir. 2001).
- ^ Francis v. Francis, 203 U.S. 233 (1907) .
- ^ Ewert v. Bluejacket, 259 U.S. 129 (1922).
- ^ City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. 197 (2005).
- ^ Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 (2d Cir. 2005).
- ^ 2006 WL 285801.
- ^ 547 U.S. 1128 (2006).
- ^ Kathryn E. Fort, The New Laches: Creating Title where None Existed, 16 Geo. Mason L. Rev. 357 (2009); Patrick W. Wandres, Indian Land Claims, Sherrill and the Impending Legacy of the Doctrine of Laches, 31 Am. Indian L. Rev. 131 (2006).
- ^ Ottawa Tribe of Oklahoma v. Logan, 577 F.3d 634 (6th Cir. 2009).
- ^ Yankton Sioux Tribe v. Podhradsky, 606 F.3d 985 (8th Cir. 2008).
- ^ Osage Nation v. Irby, 597 F.3d 1117 (10th Cir. 2010).
- ^ Shawnee Tribe v. United States, 423 F.3d 1204 (10th Cir. 2005).
- ^ Carcieri v. Norton, 423 F.3d 45 (1st Cir. 2005), reheard en banc, 497 F.3d 15 (1st Cir. 2007).
- ^ 129 S.Ct. 1058 (2009).
- ^ Saginaw Chippewa Indian Tribe of Michigan v. Granholm, 2008 WL 4808823 (E.D. Mich. 2008).
- ^ Paiute-Shoshone Indians of Bishop Community of Bishop Colony, California v. City of Los Angeles, 2007 WL 521403 (E.D. Cal. 2007).
- ^ New Jersey Sand Hill Band of Lenape & Cherokee Indians v. Corzine, 2010 WL 2674565 (D. N.J. 2010).
- ^ In re Schugg, 384 B.R. 263 (D. Ariz. 2008).
- ^ Pelt v. Utah, 611 F.Supp.2d 1267 (D. Utah 2009).
- ^ Ottawa Tribe of Oklahoma v. Ohio Dept. of Natural Resources, 541 F.Supp.2d 971 (N.D. Ohio 2008).
- ^ Sioux Tribe v. U. S., 205 Ct.Cl. 148 (1974).
- ^ Bruce S. Flushman & Joe Barbieri, Aboriginal Title: The Special Case of California, 17 Pac. L.J. 391, 426 (1986) ("The effect of the establishment of a reservation on aboriginal title in ambiguous.").
- ^ Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985).
- ^ U.S. v. Romaine, 255 F. 253 (9th Cir. 1919).
- ^ Ward v. Race Horse, 163 U.S. 504 (1896).
- Menominee Tribe of Indians v. U.S., 391 U.S. 404 (1968); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Voigt, 700 F.2d 341 (7th Cir. 1983). But see In re Wilson, 634 P.2d 363 (Cal. 1983).
- ^ Red Lake Band of Chippewa Indians v. State of Minn., 614 F.2d 1161 (8th Cir. 1980).
- ^ Confederated Tribes of Chehalis Indian Reservation v. State of Wash., 96 F.3d 334 (9th Cir. 1996).
References
- Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier (2005).
- Nancy Carol Carter, Race and Power Politics as Aspects of Federal Guardianship over American Indians: Land-Related Cases, 1887–1924, 4 Am. Indian L. Rev. 197 (1976).
- 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)
- Gus P. Coldebella & Mark S. Puzella, The Landowner Defendants in Indian Land Claims: Hostages to History, 37 New Eng. L. Rev. 585 (2003).
- George P. Generas, Jr & Karen Gantt, This Land is Your Land, This Land is My Land: Indian Land Claims, 28 J. Land Resources & Envtl. L. 1 (2008).
- Nell Jessup Newton, Indian Claims in the Courts of the Conqueror, 41 Am. Indian L. Rev. 753 (1992).
- Wenona T. Singel & Matthew L.M. Fletcher, Power, Authority & Tribal Property, 41 Tulsa L. Rev. 21 (2005).
- Tim Vollmann, A Survey of Eastern Indian Land Claims: 1970–1979, 31 Me. L. Rev. 5 (1979).
Further reading
- Russel L. Barsh, Indian Land Claims Policy in the United States, 58 N.D. L. Rev. 7 (1982).