On petition for writ of certiorari to the United States Court of
Appeals for the Second Circuit.
The petition for a writ of certiorari is denied.
Justice REHNQUIST, dissenting.
This case involves the scope and applicability of the
Nonintercourse statute, first enacted in 1790 and now codified in
25 U.S.C. 177, which prohibits the sale of Indian land unless
conveyed by a treaty approved by the Federal Government. The Court
of Appeals for the Second Circuit held that the terms of the
Nonintercourse statute apply to all land throughout the United
States. Because the decision below casts doubt on the title to land
in millions of acres in the eastern part of the United States, I
would grant the petition for certiorari.
In 1977, respondent brought suit to obtain possession of
approximately 600 acres of land currently in the possession of the
State of Connecticut. Respondent claimed that it owned this land
from "time immemorial" and that the land was subsequently acquired
from respondent without the approval of the United States, in
violation of the Nonintercourse statute of 1790 and its successor
statutes. The District Court denied petitioner's motion to dismiss,
but certified the question for interlocutory appeal pursuant to 28
U.S.C. 1292(b).
The Court of Appeals for the Second Circuit affirmed.
638 F.2d
612 ( 1980). Petitioner argued that the Nonintercourse
Page 452 U.S.
968 , 969
statute applies only to Indian land in "Indian country," which
would be primarily western lands as defined in the various Indian
Trade and Intercourse Acts, and not to all Indian land. Petitioner
also pointed to a provision in several of the Nonintercourse
statutes which stated that nothing in the statute prohibited trade
or intercourse with Indians living on land "surrounded by
settlements." See id., at 618. It was petitioner's view that Indian
land in Connecticut was exempt from the provisions of the
Nonintercourse statute, since it was clearly "surrounded by
settlements." The court observed:
"In these suits, [petitioner] states have marshalled historical
evidence which suggests that the eastern Indian tribes and their
lands were always understood to be under the jurisdiction of the
states. While these arguments have been held to be unavailing in a
number of other contexts, such as whether the eastern tribes were
properly considered 'tribes' under the protection of the federal
government, and whether they were considered 'tribes' for purposes
of sovereign immunity to suit, until this action, no court has had
to address directly the issue of whether the Nonintercourse statute
was intended to apply to land held by the eastern tribes. The
State's argument is admittedly appealing in that it would explain
why both the states and the federal government have ignored so
completely what the Indians assert to be the dictates of the
Nonintercourse statute." Id., at 615 (footnotes and emphasis
added).
Notwithstanding this concession, the Court of Appeals, after
canvassing the history of the Indian statutes and relevant aspects
of Indian land tenure, ultimately concluded that the Nonintercourse
statute applied to all Indian land, whether or not it was in Indian
country, and thus included the land claimed by respondents.
There can be little doubt that the Court of Appeals' un-
Page 452 U.S.
968 , 970
precedented holding makes millions of acres in the eastern
United States vulnerable to Indian land-title claims. For that
reason alone, I believe that this Court should grant plenary
consideration over this case and determine this vitally important
issue. Though I do not propose here to address the merits of the
decision below, I do note that the Court of Appeals struggled with
two somewhat conflicting decisions of this Court, Oneida Indian
Nation v. County of Oneida,
414 U.S. 661, 39 L. Ed.
2d 73 (1974), and Wilson v. Omaha Indian Tribe,
442 U.S. 653 (1979). The
Court of Appeals felt that Oneida supported, at least obliquely,
the position of respondent here, while Wilson supported that of the
petitioner.
As support for the proposition that Indian title to land in the
13 original States could not be extinguished without the consent of
the Federal Government, the Court of Appeals cited this dicta from
Oneida:
"The rudimentary propositions that Indian title is a matter of
federal law and can be extinguished only with federal consent apply
in all of the States, including the original 13. It is true that
the United States never held fee title to the Indian lands in the
original States as it did to almost all the rest of the continental
United States and that fee title to Indian lands in these States,
or the pre-emptive right to purchase from the Indians, was in the
State, Fletcher v. Peck, 6 Cranch 87 [3 L. Ed. 162] (1810). But
this reality did not alter the doctrine that federal law, treaties,
and statutes protected Indian occupancy and that its termination
was exclusively the province of federal law." 414 U.S., at 670-779
( footnote omitted) (quoted in 638 F.2d, at 625).
The meaning of this passage is somewhat unclear, since a
footnote to that passage, omitted by the Court of Appeals here,
suggests that the United States does hold fee title to some portion
of Indian land. The footnote reads:
"See also Cherokee Nation v. Georgia, [5 Pet.], at 38;
Page 452 U.S.
968 , 971
Clark v. Smith, 13 Pet. 195 [10 L. Ed. 123] (1839); Lattimer v.
Poteet, 14 Pet. 4 [10 L. Ed. 328] (1840); Seneca Nation v. Christy,
162 U.S. 283 []
(1896). 'Outside of the territory of the original colonies, the
ultimate fee is located in the United States and may be granted to
individuals subject to the Indian right of occupancy.' Federal
Indian Law 599; Missouri v. Iowa, 7 How. 660 [12 L. Ed. 861]
(1849)." 414 U.S., at 670, n. 6, n. 6 (emphasis supplied).
And in a recent decision, Wilson v. Omaha Indian Tribe, supra,
this Court took a more limited view of the territorial
applicability of the Trade and Intercourse Acts. The Court held
that the present-day descendant of 22 of the 1834 Act, which
establishes the burden of proof in land disputes between Indians
and "a white person," did not apply to a suit between the State of
Iowa and an Indian tribe. The Court relied on the fact that the
original 22 was incorporated into the 1834 Act which, in our view,
was meant to apply only " 'to the whole Indian country.' " 442
U.S., at 667, quoting H.R.Rep.No.474, 23d Cong., 1st Sess., 10
(1834). We explained that "it is apparent that in adopting 22
Congress had in mind only disputes arising in Indian country,
disputes that would not arise in or involve any of the States." 442
U.S., at 668 (emphasis supplied). Thus, in Wilson, the Court
implicitly confirmed that the various versions of the Trade and
Intercourse Acts were intended to apply only in Indian country.
I am not at all sure how the issue presented here should be
finally resolved. It is clear to me, however, that numerous suits
have been brought by Indian tribes in the eastern part of the
United States asserting claims to large tracts of lands and that
the decision below throws into uncertainty the validity of land
titles throughout that area. Accordingly, I believe that the
petition for certiorari should be granted in order to at least
attempt to rectify that uncertainty.
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