Aboriginal title in the United States


The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title. Native American tribes and nations 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, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust.
The power of Congress to extinguish aboriginal title—by "purchase or conquest," or with a clear statement—is plenary and exclusive. Such extinguishment is not compensable under the Fifth Amendment, although various statutes provide for compensation. Unextinguished aboriginal title provides a federal common law cause of action for ejectment or trespass, for which there is federal subject-matter jurisdiction. 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 and gambling enterprises.
Large-scale compensatory litigation first arose in the 1940s, and possessory litigation in the 1970s. Federal sovereign immunity bars possessory claims against the federal government, although compensatory claims are possible by statute. The Eleventh Amendment bars both possessory and compensatory claims against states, unless the federal government intervenes. The US Supreme Court rejected nearly all legal and equitable affirmative defenses in 1985. However, the Second Circuit—where most remaining possessory claims are pending—has held that laches bars all claims that are "disruptive."

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 Royal Proclamation of 1763 changed matters, reserving for the Crown the exclusive right of preemption, requiring all such purchases to have Royal approval. It was also an attempt to restrain colonial settlement west of the Appalachian Mountains. Forged versions of the Pratt-Yorke opinion of 1757 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:
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 United States Constitution in 1788, which vested authority over commerce with American Indian tribes 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 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. 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.
Fletcher v. Peck and Johnson v. McIntosh, the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuits, where land speculators deceived the court with a falsified case and controversy in order to elicit the desired precedent. In Cherokee Nation v. Georgia and Worcester v. Georgia, the dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title.
Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Mitchel v. United States 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, except to The Crown.

Removal era

The Indian Removal Act of 1830 established policy that resulted in the complete extinguishment of aboriginal title in Alabama and Mississippi ; Florida and Illinois ; Georgia, North Carolina, and Tennessee ; Indiana ; and Ohio.

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. 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 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 introduced an allotment policy, whereby communal reservation lands were divided into parcels held in fee simple 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 extinguished all aboriginal title in Alaska. Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island and Maine.
According to Prof. Stuart Banner:

Federal

Constitution of the United States

U.S. Const. art. I, § 8, cl. 3 provides:
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
  • Confederation Congress Proclamation of 1783
  • Northwest Ordinance
  • Nonintercourse Act
  • Indian Removal Act
  • Dawes Act
  • Curtis Act of 1898
  • Indian Reorganization Act
  • Indian Claims Commission Act
  • Alaska Native Claims Settlement Act
  • Indian Land Claims Settlements
  • Indian Claims Limitations Act

    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:
—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:
—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:
-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". 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 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 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.