History The first litigation of the Nonintercourse Act by an indigenous party to reach the Supreme Court was
Cherokee Nation v. Georgia (1831), which the Court dismissed on the technicality that the court lacked
original jurisdiction, 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, "because 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 and the
Contract Clause and the dormant
Indian Commerce Clause of the
United States Constitution. William Wirt's arguments may have had a telling effect, for in a subsequent action,
Worcester v. Georgia (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 (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 grounds doctrine. The Act remained essentially unlitigated by tribes until
Federal Power Commission v. Tuscarora Indian Nation (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: 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, and
nonjusticiability. 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 (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 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. More recently (2008), the Second Circuit has stated:
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. 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 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 bring, and has successfully brought, actions 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
Confederation Congress Proclamation of 1783, 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
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. 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. McIntosh (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 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.
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.
Affirmative defenses Courts have considered and rejected several
affirmative defenses 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 (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.
Cayuga erased a damage award of $247.9 million, the largest ever awarded under the Act. ==Other provisions==