Nonintercourse Act - Land Claims Litigation - Elements

Elements

As stated in Narragansett, there are four element to a Nonintercourse Act claim.

In order to establish a prima facie case, plaintiff must show that:

1) it is or represents an Indian “tribe” within the meaning of the Act;

2) the parcels of land at issue herein are covered by the Act as tribal land;

3) the United States has never consented to the alienation of the tribal land;

4) 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 are 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 (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 defendant's 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 (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 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. M'Intosh (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.