Aboriginal title statutes in the Thirteen Colonies

With the exception of Delaware, every colony codified a general prohibition on private purchases of Native American lands without the consent of the government.

Mohegan Indians v. Connecticut (1705–73), a lawsuit that proceeded for 70 years under special royal enabling acts only to be dismissed on non-substantive grounds, was the first and only judicial test of indigenous tenure.

[1] Aboriginal title remained a central political and economic issue and was listed as one of the enumerated grievances in the Declaration of Independence.

The colonial-law prohibition was codified at the federal level by the Confederation Congress Proclamation of 1783 and the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1834.

Pre-Revolutionary land transactions remained the subject of political and legal disputes well after Independence.

In 1637, the Connecticut Colony authorized a military expedition to Pequot lands to "maynteine our right that God by Conquest hath given to us.

[14] Other reservations were established for the Mohegans in New London in 1718[15] and others in 1726 (which were exempted from the application of adverse possession),[16] including the Pequot's before 1731.

[18] In 1706, the colony offered amnesty for those who had purchased in violation of previous prohibitions as long as they provided a "true account.

"[19] In 1717, the colony declared "all lands in this government are holden of the King of Great Britain as the lord of the fee," barred the introduction of private purchases as evidence, and established a committee to "settle this whole affair.

"[20] Noting that the prohibition was among the most "ancient laws" of the colony, the fine was increased in 1722, and treble damages were imposed.

In 1758, Georgia passed a prohibition of private purchases of Indian lands: [I]f any person or persons whosoever shall attempt to purchase or contract for, or cause to be purchased or contracted for, or shall take or acept of a grant or conveyance of any lands or tracts of lands from any Indian, or body of Indians, upon any prtence whatsoever, (except for the use of the crown and that by permission for this purpose first had and obtained from his majesty, his heirs or successors, or his or their governor or commander in chief of the said province for the time being) every such purchase, grant, contract and conveyance, shall be, and is and are hereby declared to be null and void, to all intentts an purposes whatsoever .

[24]In 1639 Maryland codified separate prohibitions on land purchases from Indians and non-English Europeans, set to expire at the end of the next session of the general assembly; the latter provided: Neither Shall [a subject of the King] obteine procure or accept of any Land within this Province from any Indian to his own or the use of any other than the Lord Proprietarie or his heirs[,] nor shall hold or possess and land .

[31] Unlike many colonies, Maryland provided limited legal remedies for the violation of Indian property rights.

After the combination of the two colonies, in 1701, a new prohibition was codified: [A]ll deeds of bargain, sale, lease, release, or quitclaim, titles and conveyances whatsoever, of any lands .

"[49] The Code of 1648 codified the prohibition such: "It is ordered by Authoritie of this Court; that no person whatsoever shall henceforth buy land of any Indian, without licence first had and obtained of the General Court: and if any shall offend heerin, such land so bought shall be forfeited to the Countrie.

[51] In 1652, the colony acknowledged aboriginal title, in a statute that made reference to several biblical verses: [W]hat lande any of the Indians, within this jurissdiction, have by possession or improvement, by subdueing of the same, they have just right thereunto, according to that Gen: 1: 28, chap: 9: 1, Psa.

[53] In 1685, the colony confirmed 5,800 acres of land to Indians in Marlborough and voided all deeds to the contrary.

[57] New Hampshire codified a more serious prohibition in 1687: [H]enceforth noe person or persons whatsoever Doe presume to tamper or treat with any Indian or Indians about the purchase sale or Confirmation of any Land or Lands whatseover within this his Majesties Territory and Dominion of the New England NOR from them or any of them take or receive any Deed or Sale Gift Mortgage Conveyance Lease Contract or Confirmation whatsoever without Leave or Lycense first had and obteyned from the Governour for the tyme being under his hand and Seale On peanlty of Forfeiture of [20 pounds per acre] AND that all such... shall be utterly void and null.

[58]In 1719, penalties were added, retroactive to violations from 1700: forfeiture, a fine of the value of the land, and 6 months in prison.

[60] In September 1683, the colony codified a prohibition against private purchases: [N]o Person or Persons, shall presume to buy any Tract or Tracts of Land, of, or from the Indians within this Province, without special Order and Authority to him and them given by the Governor and Commissioners, or the major Part of them for the time being.

[61]Any purchase to the contrary would be "null and void" and subject to a fine of 5 shillings per acre.

[62] In 1703, the prohibition was made more specific, to include "Gift of Purchase in Fee, take a Mortuage or Lease for Life or number of Years"; the authorization method was changed to "Certificate, under the hand of the Proprietors Recorder"; the fine was raised to 40 shillings per acre; and the forfeiture provision was applied to "Purchasers, their Heirs and Assigns shall forever hereafter be incapable to hold Plea for the said Land in any Court of Common Law or Equity.

[64] As recounted by later, unrelated, judicial opinion: In 1758 the State of New Jersey purchased the Indian title to lands in that State, and as a consideration for the purchase, bought a tract of land as a residence for the Indians, having previously passed an act declaring that such lands should not be subject thereafter to any tax by the State, any law or usage, or law then existing, to the contrary notwithstanding.

[65]The Director and Council of New Netherland passed a law holding citizens liable for damages to Indian crops in 1640.

[66] In 1652, the colony legislated to ""hereby dissolve, annul and make void all claimed or occupied purchases, sales, patents and deeds signed.

[70] In 1748, the colony passed a prohibition on private purchases which applied only to Tuscarora lands, and imposed a fine of 10 pounds for every 100 acres: [N]o Person, for any Consideration whatsoever, shall purchase or buy any Tract or Parcle of Land, claimed, or in Possession of any Indian or Indians, but all such Bargains and Sales shall be, and are hereby declared to be null and void, and of none Effect.

[73] A similar law was passed in 1700[74] and supplemented in 1730 by more specific legislation (and exempted from any statute of limitations).

"[76] In 1768, the colony proscribed violations of the Royal Proclamation of 1763; the punishment was to be "death without the benefit of clergy.

"[77] In 1769, the punishment was set at a 500-pound fine, 1 year in prison without bail or mainprise, plus a moiety paid to the poor.

[93]Early colonial laws removed or permitted settlers on Indian lands on an ad hoc basis.