Aboriginal title in the United States

United States

The United States of America is a federal constitutional republic comprising fifty states and a federal district...

was the first jurisdiction to acknowledge the common law

Common law

Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...

doctrine of aboriginal title

Aboriginal title

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...

(also known as "original Indian title" or "Indian right of occupancy"). Indian tribes and nations

Indian tribe

In the United States, a Native American tribe is any extant or historical tribe, band, nation, or other group or community of Indigenous peoples in the United States...

establish aboriginal title by actual, continuous, and exclusive use and occupancy for a "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated

Alienation (property law)

Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....

, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans

Native Americans in the United States

Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...

own in fee simple

Fee simple

In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...

and occupy under federal trust.

The power of Congress to extinguish aboriginal title—by "purchase or conquest," or with a clear statement

Clear statement rule

In American law, the clear statement rule is a guideline for statutory construction, instructing courts to not interpret a statute in a way that will have particular consequences unless the statute makes unmistakably clear its intent to achieve that result...

—is plenary and exclusive. Such extinguishment is not compensable under the Fifth Amendment

Fifth Amendment to the United States Constitution

The Fifth Amendment to the United States Constitution, which is part of the Bill of Rights, protects against abuse of government authority in a legal procedure. Its guarantees stem from English common law which traces back to the Magna Carta in 1215...

, although various statutes provide for compensation. Unextinguished aboriginal title provides a federal common law

Federal common law

Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states...

cause of action for ejectment

Ejectment

Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...

or trespass

Trespass

Trespass is an area of tort law broadly divided into three groups: trespass to the person, trespass to chattels and trespass to land.Trespass to the person, historically involved six separate trespasses: threats, assault, battery, wounding, mayhem, and maiming...

, for which there is federal subject-matter jurisdiction

Subject-matter jurisdiction

Subject-matter jurisdiction is the authority of a court to hear cases of a particular type or cases relating to a specific subject matter. For instance, bankruptcy court only has the authority to hear bankruptcy cases....

. Many potentially meritorious tribal lawsuits have been settled by Congressional legislation providing for the extinguishment of aboriginal title as well as monetary compensation or the approval of gaming enterprises.

Large-scale compensatory litigation first arose in the 1940s, and possessory litigation in the 1970s. Federal sovereign immunity

Sovereign immunity in the United States

Sovereign immunity in the United States is the legal privilege by which the American federal, state, and tribal governments cannot be sued. Local governments in most jurisdictions enjoy immunity from some forms of suit, particularly in tort...

bars possessory claims against the federal government, although compensatory claims are possible by statute. The Eleventh Amendment

Eleventh Amendment to the United States Constitution

The Eleventh Amendment to the United States Constitution, which was passed by the Congress on March 4, 1794, and was ratified on February 7, 1795, deals with each state's sovereign immunity. This amendment was adopted in order to overrule the U.S. Supreme Court's decision in Chisholm v...

bars both possessory and compensatory claims against states

U.S. state

A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...

, unless the federal government intervenes. The US Supreme Court

Supreme Court of the United States

The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...

rejected nearly all legal and equitable affirmative defenses in 1985. However, the Second Circuit

United States Court of Appeals for the Second Circuit

The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

—where most remaining possessory claims are pending—has held that laches
Laches (equity)
Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the [opposing] party" When asserted in litigation, it is an equitable defense, or doctrine...

bars all claims that are "disruptive."

History

Before Independence

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 Royal Proclamation of 1763

Royal Proclamation of 1763

The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...

changed matters, reserving for the Crown

The Crown

The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...

the exclusive right of preemption, requiring all such purchases to have Royal approval. It was also an attempt to restrain colonial settlement east of the Appalachian Mountains

Appalachian Mountains

The Appalachian Mountains #Whether the stressed vowel is or ,#Whether the "ch" is pronounced as a fricative or an affricate , and#Whether the final vowel is the monophthong or the diphthong .), often called the Appalachians, are a system of mountains in eastern North America. The Appalachians...

(see map). Forged versions of the Pratt-Yorke opinion

Pratt-Yorke opinion

The Pratt-York opinion was a 1757 official legal opinion issued jointly by Charles Pratt, 1st Earl Camden, the Attorney General for England and Wales, and Charles Yorke, the Solicitor General for England and Wales , regarding the legality of land purchases by the British East India Company from...

of 1757 (in its authentic form, a joint opinion of Britain's Attorney General

Attorney General for England and Wales

Her Majesty's Attorney General for England and Wales, usually known simply as the Attorney General, is one of the Law Officers of the Crown. Along with the subordinate Solicitor General for England and Wales, the Attorney General serves as the chief legal adviser of the Crown and its government in...

and Solicitor General

Solicitor General for England and Wales

Her Majesty's Solicitor General for England and Wales, often known as the Solicitor General, is one of the Law Officers of the Crown, and the deputy of the Attorney General, whose duty is to advise the Crown and Cabinet on the law...

regarding land purchases in India

India

India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...

) were circulated in the colonies, edited such that it appeared to apply to purchases from Native Americans.

The Royal Proclamation was among the enumerated complaints in the Declaration of Independence

United States Declaration of Independence

The Declaration of Independence was a statement adopted by the Continental Congress on July 4, 1776, which announced that the thirteen American colonies then at war with Great Britain regarded themselves as independent states, and no longer a part of the British Empire. John Adams put forth a...

He has endeavoured to prevent the Population of these States; for that Purpose . . . raising the Conditions of new Appropriations of Lands.

Articles of Confederation-era
The Confederation Congress Proclamation of 1783

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...

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

Articles of Confederation

The Articles of Confederation, formally the Articles of Confederation and Perpetual Union, was an agreement among the 13 founding states that legally established the United States of America as a confederation of sovereign states and served as its first constitution...

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.

Post-Constitution
States lost the ability to extinguish aboriginal title with the ratification of the United States Constitution

United States Constitution

The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

in 1788, which vested authority over commerce with American Indian tribes

Commerce Clause

The Commerce Clause is an enumerated power listed in the United States Constitution . The clause states that the United States Congress shall have power "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Courts and commentators have tended to...

in the federal government. Congress codified this prohibition in the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1833.

Marshall Court

The Marshall Court (1801—1835) issued some of the earliest and most influential opinions on the status of aboriginal title in the United States, most of them authored by Chief Justice John Marshall

John Marshall

John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...

. But, without exception, the remarks of the Court on aboriginal title during this period are dicta. Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction

Original jurisdiction

The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...

.

Fletcher v. Peck
Fletcher v. Peck
Fletcher v. Peck, , was a landmark United States Supreme Court decision. The first case in which the Supreme Court ruled a state law unconstitutional, the decision also helped create a growing precedent for the sanctity of legal contracts, and hinted that Native Americans did not hold title to...

(1810) and Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...

(1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuit

Collusive lawsuit

A collusive lawsuit is a lawsuit in which the parties to the suit have no actual quarrel with one another, but one sues the other to achieve some result desired by both.-Constitutional law:...

s, where land speculators deceived the court with a falsified case and controversy in order to elicit the desired precedent. In Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...

(1831) and Worcester v. Georgia
Worcester v. Georgia
Worcester v. Georgia, 31 U.S. 515 , was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional.The...

(1832), the dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title

Aboriginal title

Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...

.

Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Michell 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 inalienable

InAlienable

InAlienable is a 2008 science fiction horror film written and produced by Walter Koenig, and directed by Robert Dyke.-Plot:Dr. Eric Norris remains wracked with guilt after a terrible tragedy that cost him his family, and when he learns that an alien parasite is not only growing inside him but...

, except to The Crown

The Crown

.

Removal era

The Indian Removal Act

Indian Removal Act

The Indian Removal Act was signed into law by President Andrew Jackson on May 28, 1830.The Removal Act was strongly supported in the South, where states were eager to gain access to lands inhabited by the Five Civilized Tribes. In particular, Georgia, the largest state at that time, was involved in...

of 1830 established policy that resulted in the complete extinguishment of aboriginal title in Alabama

Alabama

Alabama is a state located in the southeastern region of the United States. It is bordered by Tennessee to the north, Georgia to the east, Florida and the Gulf of Mexico to the south, and Mississippi to the west. Alabama ranks 30th in total land area and ranks second in the size of its inland...

and Mississippi

Mississippi

Mississippi is a U.S. state located in the Southern United States. Jackson is the state capital and largest city. The name of the state derives from the Mississippi River, which flows along its western boundary, whose name comes from the Ojibwe word misi-ziibi...

(1832); Florida

Florida

Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...

and Illinois

Illinois

Illinois is the fifth-most populous state of the United States of America, and is often noted for being a microcosm of the entire country. With Chicago in the northeast, small industrial cities and great agricultural productivity in central and northern Illinois, and natural resources like coal,...

(1833); Georgia

Georgia (U.S. state)

Georgia is a state located in the southeastern United States. It was established in 1732, the last of the original Thirteen Colonies. The state is named after King George II of Great Britain. Georgia was the fourth state to ratify the United States Constitution, on January 2, 1788...

, North Carolina

North Carolina

North Carolina is a state located in the southeastern United States. The state borders South Carolina and Georgia to the south, Tennessee to the west and Virginia to the north. North Carolina contains 100 counties. Its capital is Raleigh, and its largest city is Charlotte...

, and Tennessee

Tennessee

Tennessee is a U.S. state located in the Southeastern United States. It has a population of 6,346,105, making it the nation's 17th-largest state by population, and covers , making it the 36th-largest by total land area...

(1835) [the Treaty of New Echota

Treaty of New Echota

The Treaty of New Echota was a treaty signed on December 29, 1835, in New Echota, Georgia by officials of the United States government and representatives of a minority Cherokee political faction, known as the Treaty Party...

]; Indiana

Indiana

Indiana is a US state, admitted to the United States as the 19th on December 11, 1816. It is located in the Midwestern United States and Great Lakes Region. With 6,483,802 residents, the state is ranked 15th in population and 16th in population density. Indiana is ranked 38th in land area and is...

(1840); and Ohio

Ohio

Ohio is a Midwestern state in the United States. The 34th largest state by area in the U.S.,it is the 7th‑most populous with over 11.5 million residents, containing several major American cities and seven metropolitan areas with populations of 500,000 or more.The state's capital is Columbus...

(1842).

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

Indian reservation

An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...

in Iowa

Iowa

Iowa is a state located in the Midwestern United States, an area often referred to as the "American Heartland". It derives its name from the Ioway people, one of the many American Indian tribes that occupied the state at the time of European exploration. Iowa was a part of the French colony of New...

, Minnesota

Minnesota

Minnesota is a U.S. state located in the Midwestern United States. The twelfth largest state of the U.S., it is the twenty-first most populous, with 5.3 million residents. Minnesota was carved out of the eastern half of the Minnesota Territory and admitted to the Union as the thirty-second state...

, Texas

Texas

Texas is the second largest U.S. state by both area and population, and the largest state by area in the contiguous United States.The name, based on the Caddo word "Tejas" meaning "friends" or "allies", was applied by the Spanish to the Caddo themselves and to the region of their settlement in...

, and Kansas

Kansas

Kansas is a US state located in the Midwestern United States. It is named after the Kansas River which flows through it, which in turn was named after the Kansa Native American tribe, which inhabited the area. The tribe's name is often said to mean "people of the wind" or "people of the south...

by 1870; Idaho

Idaho

Idaho is a state in the Rocky Mountain area of the United States. The state's largest city and capital is Boise. Residents are called "Idahoans". Idaho was admitted to the Union on July 3, 1890, as the 43rd state....

, Washington, Utah

Utah

Utah is a state in the Western United States. It was the 45th state to join the Union, on January 4, 1896. Approximately 80% of Utah's 2,763,885 people live along the Wasatch Front, centering on Salt Lake City. This leaves vast expanses of the state nearly uninhabited, making the population the...

, Oregon

Oregon

Oregon is a state in the Pacific Northwest region of the United States. It is located on the Pacific coast, with Washington to the north, California to the south, Nevada on the southeast and Idaho to the east. The Columbia and Snake rivers delineate much of Oregon's northern and eastern...

, Nevada

Nevada

Nevada is a state in the western, mountain west, and southwestern regions of the United States. With an area of and a population of about 2.7 million, it is the 7th-largest and 35th-most populous state. Over two-thirds of Nevada's people live in the Las Vegas metropolitan area, which contains its...

, Wyoming

Wyoming

Wyoming is a state in the mountain region of the Western United States. The western two thirds of the state is covered mostly with the mountain ranges and rangelands in the foothills of the Eastern Rocky Mountains, while the eastern third of the state is high elevation prairie known as the High...

, Nebraska

Nebraska

Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....

, and Colorado

Colorado

Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

by 1880; and Montana

Montana

Montana is a state in the Western United States. The western third of Montana contains numerous mountain ranges. Smaller, "island ranges" are found in the central third of the state, for a total of 77 named ranges of the Rocky Mountains. This geographical fact is reflected in the state's name,...

, Arizona

Arizona

Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...

, and New Mexico

New Mexico

New Mexico is a state located in the southwest and western regions of the United States. New Mexico is also usually considered one of the Mountain States. With a population density of 16 per square mile, New Mexico is the sixth-most sparsely inhabited U.S...

by 1886. 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." 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."

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. Language in an 1881 Indian Country

Indian Country

Indian country is a term used to describe the many self-governing Native American communities throughout the United States. This usage is reflected in many places, both legal and colloquial...

bill—referring to "lands to which the original Indian title has never been extinguished"—was struck by its sponsors, who claimed that "there are no such lands in the United States."

In 1887, the Dawes Act

Dawes Act

The Dawes Act, adopted by Congress in 1887, authorized the President of the United States to survey Indian tribal land and divide the land into allotments for individual Indians. The Act was named for its sponsor, Senator Henry L. Dawes of Massachusetts. The Dawes Act was amended in 1891 and again...

introduced an allotment policy, whereby communal reservation lands were divided into parcels held in fee simple

Fee simple

(and thus alienable) by individual Indians, with the "surplus," as declared by the government, sold to non-Indians. Allotment ended in 1934.

1940s—present
The Alaska Native Claims Settlement Act

Alaska Native Claims Settlement Act

The Alaska Native Claims Settlement Act, commonly abbreviated ANCSA, was signed into law by President Richard M. Nixon on December 23, 1971, the largest land claims settlement in United States history. ANCSA was intended to resolve the long-standing issues surrounding aboriginal land claims in...

(1971) extinguished all aboriginal title in Alaska (although the legitimacy of the act remains disputed by some Alaskan natives). Indian Land Claims Settlements

Indian Land Claims Settlements

Indian Land Claims Settlements are settlements of Native American land claims by the United States Congress, codified in 25 U.S.C. ch. 19.In several instances, these settlements ended live claims of aboriginal title in the United States...

extinguished all aboriginal title in Rhode Island

Rhode Island

The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...

(1978) and Maine

Maine

Maine is a state in the New England region of the northeastern United States, bordered by the Atlantic Ocean to the east and south, New Hampshire to the west, and the Canadian provinces of Quebec to the northwest and New Brunswick to the northeast. Maine is both the northernmost and easternmost...

(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

Indian claims commission

The Indian Claims Commission was a judicial panel for relations between the United States Federal Government and Native American tribes. It was established in 1946 by the United States Congress to hear claims of Indian tribes against the United States...

. Some of these claims have been remarkably successful, culminating either directly in court judgements or indirectly in legislative settlements

Indian Land Claims Settlements

Federal

Federal constitution

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
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...

(British North America)
Confederation Congress Proclamation of 1783
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...

(Articles of Confederation-era)
Northwest Ordinance
Northwest Ordinance
The Northwest Ordinance was an act of the Congress of the Confederation of the United States, passed July 13, 1787...

(1787)
Nonintercourse Act (1790, 1793, 1796, 1799, 1802, 1834)
Indian Removal Act
Indian Removal Act
The Indian Removal Act was signed into law by President Andrew Jackson on May 28, 1830.The Removal Act was strongly supported in the South, where states were eager to gain access to lands inhabited by the Five Civilized Tribes. In particular, Georgia, the largest state at that time, was involved in...

(1830)
Dawes Act
Dawes Act
The Dawes Act, adopted by Congress in 1887, authorized the President of the United States to survey Indian tribal land and divide the land into allotments for individual Indians. The Act was named for its sponsor, Senator Henry L. Dawes of Massachusetts. The Dawes Act was amended in 1891 and again...

(1887)
Curtis Act of 1898
Curtis Act of 1898
The Curtis Act of 1898 was an amendment to the United States Dawes Act that brought about the allotment process of lands of the Five Civilized Tribes of Indian Territory: the Choctaw, Chickasaw, Muscogee, Cherokee, and Seminole...
Indian Reorganization Act
Indian Reorganization Act
The Indian Reorganization Act of June 18, 1934 the Indian New Deal, was U.S. federal legislation that secured certain rights to Native Americans, including Alaska Natives...

(1934)
Indian Claims Commission
Indian claims commission
The Indian Claims Commission was a judicial panel for relations between the United States Federal Government and Native American tribes. It was established in 1946 by the United States Congress to hear claims of Indian tribes against the United States...

Act (1946)
Alaska Native Claims Settlement Act
Alaska Native Claims Settlement Act
The Alaska Native Claims Settlement Act, commonly abbreviated ANCSA, was signed into law by President Richard M. Nixon on December 23, 1971, the largest land claims settlement in United States history. ANCSA was intended to resolve the long-standing issues surrounding aboriginal land claims in...

(1971)
Indian Land Claims Settlements
Indian Land Claims Settlements
Indian Land Claims Settlements are settlements of Native American land claims by the United States Congress, codified in 25 U.S.C. ch. 19.In several instances, these settlements ended live claims of aboriginal title in the United States...

(1978-2006)
Indian Claims Limitations Act
Indian Claims Limitations Act
The Indian Claims Limitations Act of 1982 is a federal statute of limitations that governs some types of claims by Native American tribes and claims by the federal government on behalf of tribes.-Previous statutes:...

(1982)

Federal case law

State

State constitutions

New Yor

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.

State statutes
State case law

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". 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. However, the requirement of exclusivity may prevent any tribe from claiming aboriginal title where multiple tribes once shared the same area. Improper designation of an ancestral group may also bar acknowledgement.

Cramer v. United States
Cramer v. United States
Cramer v. United States, 325 U.S. 1 , was a case in which the Supreme Court of the United States reviewed the conviction of Anthony Cramer, a German-born naturalized citizen, for treason...

(1923) was the first Supreme Court decision to acknowledge the doctrine of individual aboriginal title, not held in common by tribes. Individual aboriginal title may be an affirmative defense

Affirmative defense

A defendant offers an affirmative defense when responding to a plaintiff's claim in common law jurisdictions, or, more familiarly, in criminal law. Essentially, the defendant affirms that the condition is occurring or has occurred but offers a defense that bars, or prevents, the plaintiff's claim. ...

to crimes such as trespassing on US Forest Service lands. However, a claimant asserting individual aboriginal title must show that his or her ancestors held aboriginal title as individuals.

Content

Where tribal land has previously been dispossessed, the tribe cannot unify its aboriginal title with purchased fee simple to reconstitute "Indian Country

Indian Country

Indian country is a term used to describe the many self-governing Native American communities throughout the United States. This usage is reflected in many places, both legal and colloquial...

" for the purposes of tribal sovereignty in the United States. Similarly, states can tax and exercise criminal jurisdiction in alienated tribal land, whether or not the tribe reacquires it. Nor can Indians tax non-Indians who own land in fee simple otherwise within their jurisdiction.

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).

The Nonintercourse Act does not prohibit leases.

Extinguishment

The modern test for extinguishment of aboriginal title was most thoroughly explained in United States v. Santa Fe Pacific R. Co. (1941): extinguishment must come from Congress, or a part of the federal government properly delegated by Congress, and must satisfy a clear statement rule

Clear statement rule

. The earliest and most widely acknowledged method of extinguishing aboriginal title was by treaty. Even fraud

Fraud

In criminal law, a fraud is an intentional deception made for personal gain or to damage another individual; the related adjective is fraudulent. The specific legal definition varies by legal jurisdiction. Fraud is a crime, and also a civil law violation...

will not void the extinguishment of aboriginal title by the federal government (or by any actor, if the tribe waives the issue in the lower court). Some cases hold that an executive order may extinguish aboriginal title, although the dominant view is that the power lies with Congress.

Extinguishment retroactively validates trespasses and removals of resources from aboriginal lands, and thus bars compensation (either statutory or constitutional) for those encroachments.

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. However, extinguishment by state governments before between independence and 1790 is generally valid. The Second Circuit has held that states retained the power to purchase land directly from tribes during the Articles of Confederation

Articles of Confederation

period, and thus those purchases remain valid even if un-ratified by the federal government.

The infamous Lone Wolf v. Hitchcock
Lone Wolf v. Hitchcock
Lone Wolf v. Hitchcock, was a United States Supreme Court case brought against the US government by the Kiowa chief Lone Wolf, who charged that Native American tribes under the Medicine Lodge Treaty had been defrauded of land by Congressional actions in violation of the treaty.The Court declared...

(1903) held that Congress's power to extinguish was plenary, notwithstanding Indian treaties to the contrary. While this decision has not been overruled per se, it has been modified in effect by the judicial enforcement of the federal government's fiduciary duty.

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 "Christian charity." Land grants themselves therefore do not extinguish aboriginal title, nor Indian usufructory rights. Furthermore, land grants are interpreted narrowly to avoid overlapping with unextinguished aboriginal title.

Extinguishment can be accomplished through res judicata

Res judicata

Res judicata or res iudicata , also known as claim preclusion, is the Latin term for "a matter [already] judged", and may refer to two concepts: in both civil law and common law legal systems, a case in which there has been a final judgment and is no longer subject to appeal; and the legal doctrine...

. Extinguishment may also be effected through collateral estoppel

Collateral estoppel

Collateral estoppel , known in modern terminology as issue preclusion, is a common law estoppel doctrine that prevents a person from relitigating an issue. One summary is that "once a court has decided an issue of fact or law necessary to its judgment, that decision .....

following a final decision by a Court of Claims. Even before a final ICC judgement, if a tribe claims compensation on the theory that its lands were extinguished, it cannot later attempt to claim valid title to those lands. An ICC judgement acts as a bar to future claims, and an ICC payment conclusively establishes extinguishment (although, for timing purposes, the ICC has not jurisdiction to extinguish). Even though ICCA settlements are binding, the scope of the settlement may be up for debate. The United States is bound by prior determinations as well.

The Grand Canyon National Park Enlargement Act is an example of an act extinguishing aboriginal title.

East of Mississippi

Indian removal

Indian Removal

Indian removal was a nineteenth century policy of the government of the United States to relocate Native American tribes living east of the Mississippi River to lands west of the river...

policy resulted in the complete extinguishment of aboriginal title in Alabama

Alabama

and Mississippi

Mississippi

(1832), Florida

Florida

and Illinois

Illinois

(1833), Georgia

Georgia (U.S. state)

, North Carolina

North Carolina

, and Tennessee

Tennessee

(1835) [the Treaty of New Echota

Treaty of New Echota

], Indiana

Indian removals in Indiana

Indian removals in Indiana began in the early 1830s and was mostly completed by 1846. The removals were preceded by several treaties, beginning in 1795, that gradually purchased most of the state from various tribes...

(1840), and Ohio

Ohio

(1842).

Indian Land Claims Settlements

Indian Land Claims Settlements

extinguished all aboriginal title in Rhode Island

Rhode Island

The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...

in 1978 and Maine

Maine

in 1980. Similar, but non-state-wide, acts extinguished some aboriginal title in Connecticut

Connecticut

Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

, Florida

Florida

, Massachusetts

Massachusetts

The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...

, and New York

New York

New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...

.

The Vermont Supreme Court

Vermont Supreme Court

The Vermont Supreme Court is the highest judicial authority of the U.S. state of Vermont and is one of seven state courts of Vermont.The Court consists of a chief justice and four associate justices; the Court mostly hears appeals of cases that have been decided by other courts...

has held, in actions where aboriginal title was raised as a defense by criminal defendants, that all aboriginal title in Vermont

Vermont

Vermont is a state in the New England region of the northeastern United States of America. The state ranks 43rd in land area, , and 45th in total area. Its population according to the 2010 census, 630,337, is the second smallest in the country, larger only than Wyoming. It is the only New England...

was extinguished when Vermont became a state. Commentators have criticized these decisions as inconsistent with federal law.

Some eastern states argued that the Nointercourse 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.

Louisiana Purchase and Texas

Indian reservation

An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...

policy resulted in the extinguishment of all aboriginal title outside of reservations in Iowa

Iowa

, Minnesota

Minnesota

, Texas

Texas

, and Kansas

Kansas

by 1870, Wyoming

Wyoming

, Nebraska

Nebraska

Nebraska is a state on the Great Plains of the Midwestern United States. The state's capital is Lincoln and its largest city is Omaha, on the Missouri River....

, and Colorado

Colorado

Colorado is a U.S. state that encompasses much of the Rocky Mountains as well as the northeastern portion of the Colorado Plateau and the western edge of the Great Plains...

by 1880, and Montana

Montana

by 1886.

The Fifth Circuit has held that the Louisiana Land Claims Act, requiring all persons with "incomplete title" to file claims, applied to aboriginal title. Thus, the Act extinguished aboriginal title on all lands conveyed before those acts. Some of the statutes cited by the Fifth Circuit applied to Arkansas

Arkansas

Arkansas is a state located in the southern region of the United States. Its name is an Algonquian name of the Quapaw Indians. Arkansas shares borders with six states , and its eastern border is largely defined by the Mississippi River...

and Missouri

Missouri

Missouri is a US state located in the Midwestern United States, bordered by Iowa, Illinois, Kentucky, Tennessee, Arkansas, Oklahoma, Kansas and Nebraska. With a 2010 population of 5,988,927, Missouri is the 18th most populous state in the nation and the fifth most populous in the Midwest. It...

as well.

Mexican Cession

Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Utah

Utah

and Nevada

Nevada

by 1880, and Arizona

Arizona

Arizona ; is a state located in the southwestern region of the United States. It is also part of the western United States and the mountain west. The capital and largest city is Phoenix...

and New Mexico

New Mexico

by 1886.

California was different

Aboriginal title in California

Aboriginal title in California refers to the aboriginal title land rights of the indigenous peoples of California. The state is unique in that no Native American tribe in California is the counterparty to a ratified federal treaty...

. 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. Despite early authority to the contrary, 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). Cramer v. United States (1926) has distinguished this line of cases for individual aboriginal title.

Oregon territory

Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Idaho

Idaho

, Washington, and Oregon

Oregon

in 1880.

Alaska

The Alaska Native Claims Settlement Act

Alaska Native Claims Settlement Act

(ANCSA) extinguished all aboriginal title in Alaska in 1971. Moreover, ANCSA extinguished every claim "based on" aboriginal title, such as trespass

Trespass

and breach of fiduciary duty (and even the extinguishment of these did not constitute a taking). ANCSA has been interpreted not to apply offshore lands, although it did extinguish some rights to hunt and fish offshore.

Other

Submerged lands
Title to the bed and banks of rivers, and the mineral rights therein, generally passes to states upon their gaining statehood. However, this general doctrine does not apply where a tribe held treaty rights to the bed prior to statehood. Additionally, tribes can gain title to dry lands formerly covered by rivers after a river changes course. The United States can sue on behalf of tribes to gain title to those lands.

The federal navigable servitude also bars the assertion of aboriginal title, although this may give rise to a claim for breach of fiduciary duty under the ICCA.

Aboriginal title is absolutely extinguished to offshore submerged lands in the Outer Continental Shelf

Outer Continental Shelf

The Outer Continental Shelf is a peculiarity of the political geography of the United States and is the part of the internationally recognized continental shelf of the United States which does not fall under the jurisdictions of the individual U.S...

, however, under the doctrine of paramountcy

Paramountcy

The doctrine of paramountcy is the legal principle that reconciles contradicting or conflicting laws in a federalist state. Where both the central government and the provincial or state governments have the power to create laws in relation to the same matters, the laws of one government will be...

.

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.

Possessory cause of action

For the first 100 years of the history of the United States

History of the United States

The history of the United States traditionally starts with the Declaration of Independence in the year 1776, although its territory was inhabited by Native Americans since prehistoric times and then by European colonists who followed the voyages of Christopher Columbus starting in 1492. The...

, the doctrine of aboriginal title existed only in dicta supplied by decisions concerning land disputes between non-indigenous parties. It was generally assumed, but untested, that aboriginal title could be vindicated by causes of action

Cause of action

In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...

such as ejectment

Ejectment

Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...

and trespass

Trespass

. Seneca Nation of Indians v. Christy
Seneca Nation of Indians v. Christy
Seneca Nation of Indians v. Christy, 162 U.S. 283 , 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 , and the first such litigation by an indigenous plaintiff since Fellows v....

(1896), the first aboriginal title claim by an indigenous plaintiff to reach the U.S. Supreme Court, typifies the state of the law up until that point, and largely until the 1970s. The New York Court of Appeals

New York Court of Appeals

The New York Court of Appeals is the highest court in the U.S. state of New York. The Court of Appeals consists of seven judges: the Chief Judge and six associate judges who are appointed by the Governor to 14-year terms...

ruled against the Seneca, both on the merits and on statute of limitations

Statute of limitations

A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...

grounds, and the Supreme Court declined to review the decision because of adequate and independent state grounds.

The situation changed dramatically in the 1970s and 1980s. Oneida Indian Nation of N.Y. State v. Oneida County
Oneida Indian Nation of N.Y. State v. Oneida County
Oneida Indian Nation of N.Y. State v. Oneida Cnty., 414 U.S. 661 , is a landmark decision concerning aboriginal title in the United States...

(1974) ["Oneida I"] held for the first time that there was federal subject-matter jurisdiction

Subject-matter jurisdiction

for possessory claims by Indian tribes based upon aboriginal title. Oneida County v. Oneida Indian Nation of N.Y. State
Oneida County v. Oneida Indian Nation of N.Y. State
Oneida Cnty. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 , is a landmark decision concerning aboriginal title in the United States...

(1985) ["Oneida II"], held that there was a federal common law

Federal common law

Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states...

cause of action for such possessory claims, not pre-empted by the Nonintercourse Act

Indian Intercourse Act

The Nonintercourse Act is the collective name given to six statutes passed by the United States Congress in 1790, 1793, 1796, 1799, 1802, and 1834. The Act regulates commerce between Native Americans and non-Indians...

, and rejected all of the counties' remaining affirmative defenses. Most importantly, Oneida II held that there was no statute of limitations applicable to such a cause of action, allowing the Oneida to challenge a conveyance from 1795. The Second Circuit had also held that the Act creates an implied cause of action

Implied cause of action

Implied cause of action is a term used in United States statutory and constitutional law for circumstances when a court will determine that a law that creates rights also allows private parties to bring a lawsuit, even though no such remedy is explicitly provided for in the law...

, a question the Supreme Court did not reach.

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

Thirteen Colonies

The Thirteen Colonies were English and later British colonies established on the Atlantic coast of North America between 1607 and 1733. They declared their independence in the American Revolution and formed the United States of America...

, where tribal land continued to be purchased by the states without federal approval after the passage of the Constitution and the Nonintercourse Act. Joint Tribal Council of the Passamaquoddy Tribe v. Morton
Joint Tribal Council of the Passamaquoddy Tribe v. Morton
Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 528 F.2d 370 , was a landmark decision regarding aboriginal title in the United States...

(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.

To have standing, plaintiffs must prove that the surviving tribal organization is not 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. The First Circuit has also held that the cause of action under the Nonintercourse Act accrues only to tribes, not individuals; moreover, where a jury finds against tribal status, non-federally-recognized tribes are not entitled to reverse that holding as a matter of law.

In suits against private parties, the United States is not a necessary party. Similarly, historically, a court of equity

Court of equity

A chancery court, equity court or court of equity is a court that is authorized to apply principles of equity, as opposed to law, to cases brought before it.These courts began with petitions to the Lord Chancellor of England...

could not set aside fraudulent transfers of aboriginal title unless all parties to the fraud were before it. Old lower court decisions have expressed the view that aboriginal title is a political, non-justiciable question. But, this view was subsequently rejected by the Supreme Court in Oneida II.

Constitutional

The Insular Cases

Insular Cases

The Insular Cases are several U.S. Supreme Court cases concerning the status of territories acquired by the U.S. in the Spanish-American War . The name "insular" derives from the fact that these territories are islands and were administered by the War Department's Bureau of Insular Affairs...

seemed to take the view that aboriginal title was constitutionally protected property, at least within the Philippines

Philippines

The Philippines , officially known as the Republic of the Philippines , is a country in Southeast Asia in the western Pacific Ocean. To its north across the Luzon Strait lies Taiwan. West across the South China Sea sits Vietnam...

. In the 1930s and 1940s, the Supreme Court held that the Takings Clause of the Fifth Amendment to the United States Constitution

Fifth Amendment to the United States Constitution

required compensation for the taking of Indian lands when held in fee simple (as limited by treaty) and treaty title. It took the contrary view with a reservation created by executive order. The taking of reservation land is now acknowledged as a taking.

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. 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. 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. Tillamooks II (1951) appeared to accept the Hynes view by denying interest to the compensation paid on remand following Tillamooks I.

Tee-Hit-Ton Indians v. United States
Tee-Hit-Ton Indians v. United States
Tee-Hit-Ton Indians v. United States, 348 U.S. 272 is a United States Supreme Court case involving a suit by the Tee-Hit-Ton, a subgroup of the Tlingit people. The Tee-Hit-Ton sought compensation for lumber taken from lands they occupied from Congress...

(1955) finally held that unrecognized aboriginal title was not property within the meaning of the Fifth Amendment, and thus could be extinguished without compensation. Even the partition of a reservation does not implicate the Takings Clause, nor the modification of ANCSA. Recognized Indian title, unlike original Indian title, may give rise to Taking claims. The claims court has sometimes refused takings claims, and thus denied interest, even where tribes were acknowledged to hold fee simple.

Statutory

The Nonintercourse Act (discussed below) creates a trust relationship between tribes and the federal government, which is not easy to terminate. The ICCA also acknowledges a cause of action for breach of "fair and honorable dealings." This is compensable with money damages for breach of fiduciary duty. This fiduciary duty gives rise for a claim of unconscionable compensation even when the transfer remains valid. Liability under the fiduciary duty is sometimes the same whether the breach occurred before or after the ratification of the Constitution. However, other cases have held that the duty did not arise until 1790. This duty also gives rise to recovery for negligence

Negligence

Negligence is a failure to exercise the care that a reasonably prudent person would exercise in like circumstances. The area of tort law known as negligence involves harm caused by carelessness, not intentional harm.According to Jay M...

, such as "surveying errors". In no case would the ICCA compensate a tribe for harm by state governments.

Prior to 1946, Native American land claims were explicitly barred from Claims Courts by statute. The Indian Claims Commission Act of 1946 (ICCA) created forum of Indian land claims before the Indian Claims Commission

Indian claims commission

(subsequently merged into the United States Court of Claims

United States Court of Claims

The Court of Claims was a federal court that heard claims against the United States government. It was established in 1855 as the Court of Claims, renamed in 1948 to the United States Court of Claims , and abolished in 1982....

, and then the United States Court of Federal Claims

United States Court of Federal Claims

The United States Court of Federal Claims is a United States federal court that hears monetary claims against the U.S. government. The court is established pursuant to Congress's authority under Article One of the United States Constitution...

). However, the ICCA created a four-year statute of limitations. Moreover, the ICC and its successors may award only money damages, and cannot—for example—title land. Finally, the ICCA is the exclusive forum to pursue claims against the federal government.

In claims court, lands are valued at the date of purchase, not at present value, and without interest. Recovery is limited to that fair market value, and may not be increased to another measure, such as restitution

Restitution

The law of restitution is the law of gains-based recovery. It is to be contrasted with the law of compensation, which is the law of loss-based recovery. Obligations to make restitution and obligations to pay compensation are each a type of legal response to events in the real world. When a court...

of the profit gained by the United States through breaching its duty. Other payments or in-kind services may be offset from judgements.

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
Federal Power Commission v. Tuscarora Indian Nation
Federal Power Commission v. Tuscarora Indian Nation, , 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 by eminent domain under the Federal Power Act for a hydroelectric power...

(1960) held that the Nonintercourse Act did not apply to the federal government.

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. Prior to the ICCA, private bill

Private bill

A private bill is a proposal for a law that would apply to a particular individual or group of individuals, or corporate entity. If enacted, it becomes a private Act . This is unlike public bills which apply to everyone within their jurisdiction...

s waived sovereign immunity for specific tribal complaints. The ICCA, and its amendments, also created a statute of limitations for claims against the federal government.

State sovereign immunity

The vast majority of allegedly illegal expropriation of tribal lands has occurred at the hands of states

U.S. state

; however, regardless of the merits of these claims, states generally may not be sued. The Eleventh Amendment

Eleventh Amendment to the United States Constitution

, 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 that private individuals. There are several exceptions to state sovereign immunity potentially relevant to aboriginal title claimants: the doctrine of Ex parte Young
Ex parte Young
Ex parte Young, , is a United States Supreme Court case that allows suits in federal courts against officials acting on behalf of states of the union to proceed despite the State's Sovereign immunity, when the State acted unconstitutionally.-Facts:...

(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), the Supreme Court in Idaho v. Coeur d'Alene Tribe (1997) held that state sovereign immunity barred not only quiet title

Quiet title

An action to quiet title is a lawsuit brought in a court having jurisdiction over land disputes, in order to establish a party's title to real property against anyone and everyone, and thus "quiet" any challenges or claims to the title....

suits but also suits against state officials which would constitute the equivalent of quiet title. 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.

There are at least two Congressional statutes which may have contemplated authorizing aboriginal title suits against states: the Nonintercourse Act and 28 U.S.C. § 1362, providing: "district courts shall have original jurisdiction of all civil actions, brought by any Indian tribe or band with a governing body duly recognized by the Secretary of the Interior, wherein the matter in controversy arises under the Constitution, laws, or treaties of the United States." The Supreme Court rejected the latter in Blatchford, supra; the Fifth Circuit

United States Court of Appeals for the Fifth Circuit

The United States Court of Appeals for the Fifth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Louisiana* Middle District of Louisiana...

rejected the former in 2000. The Supreme Court mooted both in Seminole Tribe v. Florida
Seminole Tribe v. Florida
Seminole Tribe of Florida v. Florida, 517 U.S. 44 , was a United States Supreme Court case which held that Article One of the U.S. Constitution did not give the United States Congress the power to abrogate the sovereign immunity of the states that is further protected under the Eleventh Amendment...

(1996)—a suit under the Indian Gaming Regulatory Act

Indian Gaming Regulatory Act

The Indian Gaming Regulatory Act is a 1988 United States federal law that establishes the jurisdictional framework that governs Indian gaming. There was no federal gaming structure before this act...

—when it held that Congress could not constitutionally abrogate state sovereign immunity under the Indian Commerce Clause, the basis for both statutes. This holding has subsequently been expanded to nearly all of Congress's Article One

Article One of the United States Constitution

Article One of the United States Constitution describes the powers of Congress, the legislative branch of the federal government. The Article establishes the powers of and limitations on the Congress, consisting of a House of Representatives composed of Representatives, with each state gaining or...

powers, leaving only the Reconstruction Amendments

Reconstruction Amendments

The Reconstruction Amendments are the Thirteenth, Fourteenth, and Fifteenth amendments to the United States Constitution, adopted between 1865 and 1870, the five years immediately following the Civil War...

as a basis for abrogating state sovereign immunity.

Finally, the federal government may bring suits against states on behalf of the tribes in its guardian capacity, as it historically has. 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. 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.

Delay

Statute of limitations/adverse possession
Oneida County v. Oneida Indian Nation of N.Y. State
Oneida County v. Oneida Indian Nation of N.Y. State
Oneida Cnty. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 , is a landmark decision concerning aboriginal title in the United States...

(1985) ["Oneida II"] held that it would violate federal policy to apply the state statute of limitations

Statute of limitations

A statute of limitations is an enactment in a common law legal system that sets the maximum time after an event that legal proceedings based on that event may be initiated...

to the federal cause of action for ejectment based on aboriginal title; thus, there is no statute of limitations. Similarly, the widely held view is that aboriginal title cannot be adversely possessed

Adverse possession

Adverse possession is a process by which premises can change ownership. It is a common law concept concerning the title to real property . By adverse possession, title to another's real property can be acquired without compensation, by holding the property in a manner that conflicts with the true...

. However, if a tribe is subject to an Indian Termination Act, the state statute of limitations (and any generally applicable state law) will apply to its land claim, as the Supreme Court held in South Carolina v. Catawba Indian Tribe
South Carolina v. Catawba Indian Tribe
South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 , is an important U.S. Supreme Court precedent for aboriginal title in the United States decided in the wake of Oneida Cnty. v. Oneida Indian Nation of N.Y. State ["Oneida II"]...

(1986).

State statute of limitations do apply, however, for tribal actions under state law, such as quiet title

Quiet title

, even if based on aboriginal title. 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.

Laches
In Oneida II, the four dissenting justices would have applied laches
Laches (equity)
Laches is an "unreasonable delay pursuing a right or claim...in a way that prejudices the [opposing] party" When asserted in litigation, it is an equitable defense, or doctrine...

to dismiss the claim. Although the majority did not reach the issue (which the defendants had not preserved on appeal), it noted that "it is far from clear that this defense is available in suits such as this one" and that the "application of the equitable defense of laches in an action at law would be novel indeed." A footnote in the majority also quoted Ewert v. Bluejacket (1922), which held that laches "cannot properly have application to give vitality to a void deed and to bar the rights of Indian wards in lands subject to statutory restrictions." City of Sherrill v. Oneida Indian Nation of N.Y. (2005) applied laches to an attempt to revive tribal sovereignty over land reacquired by the tribe in fee simple.

Building on Sherrill, the Second Circuit

United States Court of Appeals for the Second Circuit

The United States Court of Appeals for the Second Circuit is one of the thirteen United States Courts of Appeals...

in Cayuga Indian Nation of N.Y. v. Pataki
Cayuga Indian Nation of N.Y. v. Pataki
Cayuga Indian Nation of N.Y. v. Pataki, 413 F.3d 266 , is an important precedent in the United States Court of Appeals for the Second Circuit for the litigation of aboriginal title in the United States. Applying the U.S. Supreme Court's recent ruling in City of Sherrill v...

(2005) held that "these equitable defenses apply to 'disruptive' Indian land claims more generally." Although the Solicitor General joined the Cayugas' appeal, the Supreme Court denied certiorari. The Second Circuit has also applied laches to non-possessory contract claims for unconscionable consideration. This doctrine has been criticized for not requiring the defendant to satisfy the traditional elements of the laches defense, applying only to Indian land claims, and having the potential to bar nearly all Indian land and treaty claims.

No other Circuit has adopted the Second Circuit's expansive view of Sherrill. The Third

United States Court of Appeals for the Third Circuit

The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...

, Sixth

United States Court of Appeals for the Sixth Circuit

The United States Court of Appeals for the Sixth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Kentucky* Western District of Kentucky...

, Eighth

United States Court of Appeals for the Eighth Circuit

The United States Court of Appeals for the Eighth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* Eastern District of Arkansas* Western District of Arkansas...

, and Tenth

United States Court of Appeals for the Tenth Circuit

The United States Court of Appeals for the Tenth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Colorado* District of Kansas...

Circuits, since Sherrill, have declined to reach the question of the scope of laches as a defense to ancient tribal claims. The First Circuit

United States Court of Appeals for the First Circuit

The United States Court of Appeals for the First Circuit is a federal court with appellate jurisdiction over the district courts in the following districts:* District of Maine* District of Massachusetts...

has limited Sherrill to assertions of sovereignty, in an opinion that was reversed on other grounds. Some district courts

United States district court

The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...

take the First Circuit's view; others the Second Circuit's; others strike a middle ground.

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.

The relationship between aboriginal title and reservations is unclear. Often, courts will not reach the question of aboriginal title, if the same land is found to comprise part of an Indian reservation

Indian reservation

An American Indian reservation is an area of land managed by a Native American tribe under the United States Department of the Interior's Bureau of Indian Affairs...

. Some reservations were created in a process that extinguished aboriginal title. Although Congress has the power to grant tribes land in fee simple, some reservations may continue to be held in aboriginal title.

The old view was that the extinguishment of aboriginal title extinguished all tribal rights to the same land. The current view is that usufructory rights pursuant to a treaty may survive the extinguishment of aboriginal title. However, such usufructs may be lost when tribes cede land to the federal government. Certain usufructs may be extinguished by implication.

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