The Nonintercourse Act (also known as the Indian Intercourse Act or the Indian Nonintercourse Act) is the collective name given to six statutes passed by the United States Congress in 1790, 1793, 1796, 1799, 1802, and 1834 to set boundaries of American Indian reservations. The various acts were also intended to regulate commerce between White Americans and citizens of Indigenous nations. The most notable provisions of the act regulate the inalienability of aboriginal title in the United States, a continuing source of litigation for almost 200 years. The prohibition on purchases of Indian lands without the approval of the federal government has its origins in the Royal Proclamation of 1763 and the Confederation Congress Proclamation of 1783.
Text of the land provision The first four acts expired after four years; the 1802 and 1834 acts had no expiration. The version of the act in force at the time of the illicit conveyance determines the law that applies. The courts have found few legal differences between the five versions of the act.See, e.g., New York ex rel. Cutler v. Dibble, 62 U.S. (21 How.) 366, 367 (1858) ("[C]ounsel for the plaintiffs in error contended that ... [the 1834 Act] repealed so much of [the 1802 Act] as applied to the Indians west of the Mississippi, but left it operative upon the Indians east of the Mississippi ..."); see also O'Toole and Tureen, 1971, at 3 n.8. For example, three dissenting justices in South Carolina v. Catawba Indian Tribe (1986) noted that the 1793 Act expanded the scope of the 1790 Act by applying the prohibition not only to lands but "claims".South Carolina v. Catawba Indian Tribe, Inc., 476 U.S. 498 (1986) (Blackmun, J., dissenting).
The original act, passed on July 22, 1790, provides:
The 1793 act provides:
The 1796 act provides:
The 1799 act provides:
The 1802 act provides:
The 1834 act, currently codified at 25 U.S.C. § 177, provides:
Legislative history One of the earliest interpretations of the Nonintercourse Act comes from a speech by President George Washington to the Seneca Nation of New York in 1790, after the passage of the act: I am not uninformed that the six Nations have been led into some difficulties with respect to the sale of their lands since the peace. But I must inform you that these evils arose before the present government of the United States was established, when the separate States and individuals under their authority, undertook to treat with the Indian tribes respecting the sale of their lands. But the case is now entirely altered. The general Government only has the power, to treat with the Indian Nations, and any treaty formed and held without its authority will not be binding. Here then is the security for the remainder of your lands. No State nor person can purchase your lands, unless at some public treaty held under the authority of the United States. The general government will never consent to your being defrauded. But it will protect you in all your just rights.4 American State Papers 142 (1823). Text
Land claims litigation
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,Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). 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'."William Wirt, Opinion on the Right of the State of Georgia to Extend Her Laws Over the Cherokee Nation (June 20, 1830), reprinted in Niles' Weekly Register at 81, 88 (September 25, 1830). 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. A similar argument was made in the Bill filed by Wirt in the Supreme Court.The Bill Filed on behalf of the Cherokee Nation vs. the State of Georgia, in Richard Peters, The case of the Cherokee Nation against the state of Georgia 13–15 (1831). William Wirt's argumentsSee 1832 Opinions in Worcester v. Georgia. 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.Seneca Nation of Indians v. Christy, 162 U.S. 283 (1896). 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"),George C. Shattuck, The Oneida land claims: a legal history 7–8 (1991). 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.Oneida Indian Nation of N.Y. State v. Oneida Cnty., 414 U.S. 661 (1974); see also Pueblo of Isleta ex rel. Lucero v. Universal Constructors, Inc., 570 F.2d 300 (10th Cir. 1978) (finding subject-matter jurisdiction). 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.Oneida Cnty. v. Oneida Indian Nation of N.Y. State, 470 U.S. 226 (1985).
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.Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649 (D. Me.), aff'd, 528 F.2d 370 (1st Cir. 1975); see Pub. L. No. 96-420, 94 Stat. 1785 (codified at 25 U.S.C. §§ 1721–35). 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.Narragansett Tribe of Indians v. Southern R.I. Land Dev. Co., 418 F. Supp. 798 (D.R.I. 1976); Narragansett Tribe of Indians v. Murphy, 426 F. Supp. 132 (D.R.I. 1976); see Pub. L. No. 95-395, 92 Stat. 813 (codified at 25 U.S.C. §§ 1701–16). 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.Mohegan Tribe v. Connecticut, 483 F. Supp. 597 (D. Conn. 1980), aff'd, 638 F.2d 612 (2d Cir. 1980), cert. denied, 452 U.S. 968 (1981), on remand, 528 F. Supp. 1359 (D. Conn. 1982); see Pub. L. No. 103-377, 108 Stat. 3501 (codified at 25 U.S.C. § 1775). With the Mashantucket Pequot TribeWestern Pequot Tribe of Indians v. Holdridge Enters. Inc., No. H76-cv-193 (D. Conn.); see Pub. L. No. 98-134, 97 Stat. 851 (codified at 25 U.S.C. §§ 1751–60). and Wampanoag,Wampanoag Tribal Council of Gay Head v. Town of Gay Head, No. 74-cv-5826 (D. Mass.); see Pub. L. No. 100-95, 101 Stat. 704 (codified at 25 U.S.C. § 1771). 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.See O'Toole and Tureen, 1971, at 19–22 & n.101–117.