Nonintercourse Act
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 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.
Former Attorney General William Wirt, the Cherokee's lawyer, argued that the challenged Georgia statute was void, inter alia, "[b]ecause 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'.
(1974) ("Oneida I"),[16] 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.
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.
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.
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.
[21] With the Mashantucket Pequot Tribe[22] and Wampanoag,[23] Congress enacted a settlement before the courts had a chance to enter any rulings.
Although federal tribal status is prima facie evidence of the first element, the Act also applies to unrecognized tribes.
[27] Alternatively, the action may be stayed until the Bureau of Indian Affairs makes a tribal status determination (and eventually dismissed if the BIA concludes the plaintiffs are not the successors in interest).
The United States, acting in its capacity as a trustee, may bring, and has successfully brought, actions on behalf of a tribe.
[34] Unlike the Confederation Congress Proclamation of 1783, the Nonintercourse Act applies to land within the boundaries of a state, including the original thirteen.
[38] For example, the conveyances at issue in Johnson v. McIntosh (1823) occurred on July 5, 1773 and October 18, 1775, but neither party to the suit was indigenous.
Congress would have to pass a statute with express language, or the Senate would have to ratify the treaty alienating the land, to secure such federal approval.
In Passamaquoddy, supra, the First Circuit held that only Congress, and only with a clear statement, can terminate a federal–tribal trust relationship; acts of state governments are irrelevant.
One of the most defining aspects of the acts was the establishment of a series of "factories" which were officially licensed trading posts where Native Americans were to sell their merchandise (particularly furs).
The factories, which officially were set up to protect the tribes from unscrupulous private traders, were to be used as leverage to cause the tribes to cede substantial territory in exchange for access to the "factory" as happened with the Treaty of Fort Clark in which the Osage Nation exchanged most of Missouri in order to access Fort Clark.
According to U.S. Attorney General William Wirt: [T]he United States agree to pay [the Creek Indians] certain specific sums of money, out of which payments there is a reservation of $5,000 to satisfy claims for property taken by individuals of the said nation from the citizens of the United States subsequent to the treaty of Colerain, which has been or may be claimed and established agreeably to the provisions of the act for regulating trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.
[49]The Nonintercourse Act did not pre-empt the states from legislating additional restraints on alienation of Native American lands.
[53]A 1739 South Carolina Provincial Council statute required a license from the Crown or governor for a private party to purchase lands from Indians.
