Appendix — State of Connecticut v. Mohegan Tribe

Supreme Court brief1981

Ask Donna

What actually matters in this document.

Text

80-1365

No.

IN THE

Supreme Court of the Anited States

OCTOBER TERM, 1980

STATE OF CONNECTICUT

Petitioner

v.

MOHEGAN TRIBE

Respondent

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

CARL R. AJELLO

Attorney General

FRANCIS J. MAC GREGOR

GERARD J. DOWLING

Assistant Attorneys General

90 Brainard Road

Hartford, Connecticut 06114

(203) 566-7070

Attorneys for Petitioner

la

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

No. 73—September Term, 1980

(Argued September 12, 1980

Decided December 17, 1980)

Docket No. 80-7348

MOHEGAN TRIBE

Plaintiff-Appellee,

—agaist—

STATE OF CONNECTICUT

Defendant-Appellant.

Before:

FEINBERG, Chief Judge,

LUMBARD and OAKES, Circuit Judges.

Interlocutory appeal under 28 U.S.C. § 1292(b) from an

order of the United States District Court for the District of

Connecticut, Blumenfeld, J., denying a motion to dismiss an

action for possession of land on the ground that the land in-

volved was within the coverage of the Nonintercourse Statute,

25 U.S.C. § 177, and its predecessors.

Affirmed.

2a

FRANCISJ. MACGREGOR. Assistant Attorney General. Hartford,

Connecticut (Carl R. Ajello, Attorney General. Gerard J.

Dowling, Assistant Attorney General, Hartford. Connec-

ticut, of counsel), for Defendant-Appellant.

JEROME M. GRINER. Esa... West Hartford. Connecticut. for

Plaintiff-Appellee.

RICHARD S. COHEN, Attorney General of the State of Maine

(James D. St. Clair, Esq.. William F. Lee. Esq.. Hale and

Dorr, Boston, Massachusetts, of counsel). Special Coun-

sel to the State of Maine as Amicus Curiae.

THOMAS N. TUREEN, EsqQ.. Portland, Maine, Richard B. Collins.

Esq., Boulder Colorado, Native American Rights Fund,

counsel for Passamaquoddy Tribe and the Penobscot Na-

tion as Amicus Curiae.

3a

LumBarb. Circuit Judge:

This appeal requires us to decide whether the Noninter-

course statute,' which, since 1790, has prohibited the sale of

Indian land unless conveyed by a treaty approved by the fed-

eral government applies to land throughout the United States.

The appeal arises out of a suit brought against the State of

Connecticut in the District Court for Connecticut by the Mohe-

gan Tribe of Indians to regain possession of some 2,500 acres of

land in the Town of Montville, Connecticut. In its defense, the

State of Connecticut filed a motion to dismiss the suit on the

ground that the Nonintercourse statute was intended to apply

only to land in **Indian country”’ and thus did not protect the

land at issue here. Judge Blumenfeld denied the State’s motion,

holding that the statute was meant to apply to Indian lands

throughout the United States. Mohegan Tribe v. State of Con-

necticut, 483 F. Supp. 597 (D.Conn. 1980). At the State’s

request, Judge Blumenfeld certified the question of the sta-

tutes geographic applicability for appeal pursuant to 28 U.S.C.

§ 1292(b). and we consented to hear it. We find ourselves in

substantial agreement with the reasoning of the district court

and therefore affirm.

In the past few years numerous suits have been brought by

Indian tribes still residing in the eastern parts of the United

States.’ These tribes have asserted claims to large tracts of land

in the East, thereby throwing into uncertainty the validity of

land titles throughout the area.

'The statute is presently contained in 25 U.S.C. § 177. Its history is

more fully traced below.

*See. e.2., Oneida Indian Nation v. County of Oneida, 464 F.2d 916

(2d Cir. 1972), rev'd 414 U.S. 661 (1974), on remand 434 F. Supp. 527

(N.D.N.Y. 1977): Mashpee Tribe v. Town of Mashpee, 447 F. Supp.

940 (D. Mass. 1978), aff'd sub nom. Mashpee Tribe v. New Seabury

Corp., 592 F.2d 575 (ist Cir.) cert. denied, 444 U.S. 866 (1979):

Schaghticoke Tribe of Indians v. Kent School Corp., 423 F. Supp. 780

4a

These suits have been based upon the claim, after a cen-

tury and a half of occupation by non-Indians, that the states in

the East entered into treaties with and purchased land from

Indian tribes after the passage of the Nonintercourse statute,

which by its terms apparently forbade such transactions with-

out the participation of the federal government. To date, the

Indians have been largely successful in their legal battles re-

garding their claims to the eastern lands. Defenses based upon

state adverse possession laws and state statutes of limitation

have been consistently rejected.* The only grounds upon which

the States have thus far succeeded in defeating Indian claims is

in demonstrating that plaintiffs in these suits do not properly

represent an existing tribe which can be proved to be the

legitimate descendant of the original landholding tribe.*

In these suits. defendant 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 unavail-

ing 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

(D. Conn. 1976); Narragansett Tribe of Indians v. Southern Rhode

Island Land Development Corp., 418 F. Supp. 798 (D. R.1. 1976);

Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F.

Supp. 649(D. Me. 1975): aff'd, 528 F.2d 370 (1st Cir. 1975). Some of

these suits have resulted in settlements authorized by Congress. This

is true of the Rhode Island claims litigated in Narragansett, and, quite

recently, of the Main claims at issue in Passamaquoddy.

See, e.g., Oneida, supra note 2, 434 F. Supp. at 541-44;

Schaghticoke, supra, note 2, 418 F. Supp. at 803-06. In this suit,

however, the State has asserted a defense based upon the *‘federal

common law of laches.’ That issue is not before us on this appeal, and

therefore we express no opinion on its validity.

4See, e.g., Mashpee, supra, note 2.

‘SPassamaquoddy, supra, note 2.

Sa

‘*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 ap-

pealing in that it would explain why both the states and the

federal government have ignored so completely what the In-

dians assert to be the dictates of the Nonintercourse statute,

however, it is necessary to trace the history of the Indian

Statutes and relevant aspects of Indian land tenure in this

country.

I. HISTORY OF INDIAN LEGISLATION

In the Royal Proclamation of 1763, the British Crown

declared that the power to ‘grant Warrants of Survey, or pass

Patents’’ for land in the American territory resided solely in the

Crown and not in the Governors or Commanders in Chief of the

Colonies. The lands were ‘‘reserved to the .. . Indians’’ unless

the sovereign was to decide otherwise. | Laws U.S. 443-48.’

Moreover, the Proclamation, for apparently the first time, es-

tablished a boundary line between the Indian territory or *‘In-

dian country’’ and the lands of the colonists. Trade which

occurred beyond the line could only be conducted with the

consent of the Crown. At the same time, land grants throughout

the American territories were solely within the authority of the

sovereign: grants ‘“‘upon any Lands whatever, which, not hav-

ing been ceded to or purchased by us as aforesaid, are reserved

to the said Indians, or any of them.’’ /d. Thus, the policy of the

Royal Proclamation was to demarcate an ‘‘Indian country”

within which trading could only be conducted with the ap-

proval of the Crown, and to establish that all grants of land from

the Indians would be valid only with the approval of the

sovereign.

*Bottonly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir. 1979).

’The Proclamation is reprinted in H. Commager, Documents of

American History 47-50 (8th ed. 1968).

6a

During the Revolution and prior to the Articles of Confed-

eration, the Continental Congress created a Department of

Indian Affairs in 1775. The jurisdiction of the Department was

divided into three areas, again all lying along the border of

so-called *‘Indian country.’’ | Laws U.S. 597. It was not until

after the adoption of the Articles of Confederation in 1781,

however, that the policy of the colonies toward Indian trade

and, in particular, toward alienation of Indian lands was

codified. First it is essential to note that Article IX of the

Articles of Confederation gave the central government exclu-

sive power over Indian affairs with the limitation that such

power could not be exercised in such a manner as to infringe

upon the “‘legislative right’’ of any state. Thus, in the Resolve

of 1783, 1 Laws U.S. 607-08, Congress affirmed the prior policy

of the Royal Proclamation of 1763 by establishing that all land

transactions with the Indians would be invalid unless approved

by the federal government, but it limited the effect of the

Resolve to lands outside the borders of the states.

Federal policy during the Confederation thus continued

the requirement that dealings with the Indians respecting land

sales would only be valid of accomplished with the authority

and approval of the central government. However, due to the

division of authority between the states and the central gov-

ernment as established in the Articles of Confederation, land

transactions within the individual states were left to the author-

ity of the states. On this point the Resolve of 1783 specifically

referred to the division of powers established in the Articles of

Confederation. See id.

The limitations of federal authority to deal with Indian

affairs contained in Article 1X of the Articles of Confederation

were removed in the Constitution. Instead, the Constitution

granted Congress the authority to ‘regulate Commerce with

foreign Nations, and among the several States, and with the

Indian Tribes.’’ U.S. Const. art. 1, § 8, cl. 3. Thus, Congress

7a

was granted plenary authority to regulate trade with the Indian

tribes throughout the United States.®

In 1790, Congress enacted the first of the Indian Trade and

Intercourse Acts. Act of July 22, 1790, ch. 33, 1 Stat. 137

(‘1790 Act’’). The majority of sections of the Act established a

system of licensing for trade with the Indians and imposed

federal authority over crimes committed on Indian property.

Section 4 of the Act contained the first Nonintercourse statute:

And be it enacted and declared, That no sale of lands

made by any Indians, or any nation or tribe of Indians

within the United States, shall be valid to any person,

or persons, or to any state, whether having the right

of pre-emption to such lands or not, unless the same

shall be made and duly executed at some public tre-

aty, held under the authority of the United States.

The statute thus continued the policy of placing authority to

extinguish Indian land rights in the sovereign.

In order to appreciate the meaning of the first Noninter-

course statute, the peculiar nature of Indian land tenure in the

United States must be noted.’ In accordance with the ‘‘right of

discovery’’ of the European settlers, native Indians found in

this country were granted the ‘‘right of occupancy”’ to their

lands. That is, the natives were allowed to remain upon their

lands, but their freedom to alienate those lands was restricted.

Theland could be sold only to the European settlers or the

’This authority was recognized ina series of court decisions culminat-

ing in Chief Justice Marshall’s definitive statement on the scope of

federal power in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).

°This history is best described in the early opinion, by Chief Justice

Marshall, inJohnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823) and

in the more recent opinion by Justice White in Oneida Indian Nation

v. County of Oneida, 414 U.S. 661 (1974).

8a

governmental authority representing those settlers. This would

prevent, for example, Indians from selling their lands to

another foreign government, hostile to the settlers. Thus, while

the Indians retained the ‘‘right of occupancy,”’ the settlers

retained the ‘‘fee interest’’ in the land and retained a “‘pre-

emptive right’’ to purchase the land from the Indians. After the

Revolution, this “‘pre-emptive right’ lay in the individual

states — at least in the already settled part of the country. And

when the states joined the Union, unless they ceded the lands,

they retained their ‘‘pre-emptive rights.’’ Nevertheless, the

right to purchase Indian lands was not inconsistent with federal

control over the extinguishment of Indian occupancy. Thus,

the first Nonintercourse statute provided that even where the

states retained ‘‘pre-emptive rights’’ to purchase the land, the

federal government was responsible for overseeing any trans-

fer of land from the Indians to the states.

The provisions of the Indian Trade and Intercourse Act of

1790 were amended and reenacted five times.'° In 1793, Con-

gress supplanted the Act of 1790, and continued the regulation

of trade with the Indian tribes, providing in more detail for the

licensing of such trade and for the enforcement of criminal law

on Indian property. More important for our purposes, section 8

of the 1793 Act continued the Nonintercourse statute with

minor changes:

And be it further enacted, That no purchase or grant

of lands, or of any title or claim thereto, from any

Indians or nation or tribe or Indians, within the

bounds of the United States, shall be of any validity

in law or equity, unless the same be made by a treaty

‘Act of March 1, 1973, ch. 19, 1 Stat. 329 (‘the 1793 Act’’): Act of

May 19, 1796 ch. 30, 1 Stat. 469 (‘‘the 1796 Act’’); Act of March 3,

1799, ch. 46, 1 Stat. 743 (“‘the 1799 Act’’); Act of March 30, 1802, ch.

13, 2 Stat. 139 (‘the 1802 Act’’); Act of June 30, 1834, ch. 161, 4 Stat.

729 (‘‘the 1834 Act’’).

9a

of convention entered into pursuant to the constitu-

tion... Provided nevertheless, That it shall be lawful

for the agent or agents of any state, who may be

present at any treaty, held with Indians under the

authority of the United States, in the presence, and

with the approbation of the commissioner or com-

missioners of the United States, appointed to hold

the same, to propose to, and adjust with the Indians,

the compensation to be made for their claims to lands

within such state, which shall be extinguished by the

treaty.

When reenacted in 1796, the Act, for the first time, con-

tained in its first section the description of a boundary line

‘established by treaty between the United States and various

Indian tribes,’’ extending from Lake Erie down the Cayahoga

and Ohio Rivers, through Kentucky and eventually to South

Carolina, delineating settled territory from ‘‘Indian country.”

The first section also contained a proviso that:

if the boundary line between the said Indian tribes

and the United States, shall, at any time hereafter, be

varied, by any treaty which shall be made between

the said Indian tribes and the United States, then all

the provisions contained in this act, shall be con-

strued to apply to the said line so to be varied, in the

Same manner, as the said provisions now apply to the

boundary line herein before recited.

1796 Act, § 1. Again a licensing system was imposed for trade

beyond the boundary, and crossing the boundary for certain

purposes was prohibited. The Nonintercourse statute, with

essentially the same language as in the 1793 Act, became sec-

tion 12 of the 1796 Act. The Trade and Intercourse Act, as a

whole, was reenacted with similar language in 1799 and 1802.

10a

In 1834, however, certain changes relevant to the ques-

tions before us were enacted. First, the description of the

boundary line between the United States and Indian country

along with the proviso regarding changes in the line was elimi-

nated and replaced with the description of Indian country as

‘‘all that part of the United States west of the Mississippi, and

not within the states of Missouri and Louisiana, or the territory

of Arkansas, and, also, that part of the United States east of the

Mississippi river, and not within any state to which the Indian

title has not been extinguished.’’ Thus, Indian country did not

include any lands within the borders of these states. At the

same time, the Act eliminated the phrase *‘ within the bounds of

the United States’ in the Nonintercourse statute, so that no

words of geographical application existed. The trade restric-

tions, contained in the other sections of the Act, were expressly

limited to Indian country. However, section 29 of the 1834 Act

stated that the repeal of the former sections of the earlier Acts

would not ‘‘impair or affect the intercourse act of eighteen

hundred and two, so far as the same relates to or concerns

Indian tribes residing east of the Mississippi.

The present Nonintercourse statute, 25 U.S.C. § 177,

states simply that:

No purchase. grant, lease, or other conveyance or

lands, or of any title or claim thereto, from any Indian

nation or tribe of Indians, shall be of any validity in

law of equity, unless the same be made by treaty or

convention entered into pursuant to the Constitu-

tion.

One other section of the Act, important to the question of

the Nonintercourse statute’s applicability to Eastern lands,

shall be mentioned. Beginning in the 1793 Act, all of the Acts

contained a section which provided that:

lla

nothing in this act shall be construed to prevent any

trade or intercourse with Indians living on lands sur-

rounded by settlements of the citizens of the United

States, and being within the jurisdiction of any of the

individual states.

1793 Act, § 13. This ‘‘surrounded by settlements’’ exception

was contained in all of the Acts except that of 1834 when it was

eliminated. No comparable provision exists today.

The State of Connecticut makes two arguments based

upon the Acts. First, the State argues that the Nonintercourse

statute was never meant to apply to land outside of Indian

country but was designed only to assure that land on the West-

ern frontier of the country would be obtained from the Indians

solely through federal treaties. Indeed, the State asserts that all

of the provisions of the various Acts were meant to apply only

in Indian country. Second, in the alternative, the State argues

that the ‘surrounded by settlements’’ provisions were meant

to exclude from the operation of the Nonintercourse statute

and the Act as a whole, Indian lands in the already developed

states. We now turn to these contentions.

Il. STATUTORY LANGUAGE

As the district court noted, the proper place to begin in

construing a statute is with the language of the statute itself.

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979). At first

blush, it is apparent that the language of the Nonintercourse

Statute makes its dictates applicable to Indian land located

anywhere in the United States. Section 4 of the Act of 1790, the

original Nonintercourse staute, quoted above, contains no lan-

guage suggesting any geographical limitation. In addition, sec-

tion 4 expressly applies to ‘‘any State, whether having the right

of pre-emption to such lands or not.’’ This language makes

plain that the statute was intended to proscribe land con-

veyances to the states, and therefore was not limited to protec-

12a

tion of land outside the boundaries of any state. As noted

earlier, only the original thirteen colonies had rights of pre-

emption to Indian lands, yet the existence of this right of

pre-emption did not exclude the existence of federal authority

to determine the conditions under which Indian title to land

within those states would be extinguished.

The 1793, 1796, 1799, and 1802 Nonintercourse statutes

contain the language that no purchase of Indian lands *‘ within

the bounds of the United States’’ will be valid unless ac-

complished by a federal treaty. This is especially significant

considering that, in these Acts, a detailed boundary was drawn

which divided settled areas from Indian country. While this

language was eliminated from the 1834 Act (along with the

detailed description of the Indian boundary), section 29 of the

Act specified that the provisions of the 1802 Act, which con-

tained the ‘‘within the bounds”’ language, were still in force

with respect to tribes east of the Mississippi. In any event, the

1834 Act and the present statute also contain no language

limiting the applicability of the land transfer provisions.

The State of Connecticut contends, however, that the

language in the original Nonintercourse statute seferring to

sales to States with rights of pre-emption and language in

subsequent statutes referring to sales to authorized state agents

was meant solely to include within federal control land purch-

ases by those of the original states through which the Indian

boundary passed, so that those lands within Indian country yet

also within the bounds of the original states would be covered.

Further, the State argues that the ‘‘within the bounds of the

United States’? language was merely meant to exclude land

transactions with Tribes residing outside of the United States

who claimed land within the United States. The second conten-

tion is simply historically inaccurate, since the United States in

fact entered into treaties with tribes under the jurisdiction of

foreign countries respecting land within United States borders,

and these treaties complied with the requirements of the federal

13a

statutory restraints against alienation. See e.g., Treaty of May

31, 1796, with the Seven Nations of Canada, 7 Stat. 55, which

conformed to the requirements of section 12 of the 1796 Trade

and Intercourse Act. See generally, R. Clinton & M. Hotopp,

Judicial Enforcement of the Federal Restraints on Alienation

of Indian Land: The Origins of the Eastern Land Claims, 31

Main L. Rev. 17, 30 n. 71 (1979).

The contention that the statute as well as all the provisions

of the various Acts was meant to apply only to those parts of the

original states which were considered to be within Indian coun-

try, while plausible, is amply refuted by inspection of the

language of other sections of the various Acts and the structure

of the Acts as a whole.'' To begin with, it is plain from the other

sections of the various Acts that Congress was quite explicit

when it needed to refer either to Indian country or to the Indian

boundary, For example, section 3 of the 1790 Act refers to

criminal penalties against those who ‘‘attempt to trade with the

Indians tribes, or shall be found in the Indian country.’’ The

1793 Act contains the same language in its section 3. Section 6

of the 1793 Act refers to purchases of ‘‘any horse [from] an

Indian, or [from] any white man in the Indian territory.’’ In the

1796 Act, where Congress was dealing with lands lying west of

the described border of Indian country, it did so specifically:

section 2, for example, refers to penalties against citizens who

cross over, or go within the ‘‘said boundary line.’’ And section

14 refers to Indians who cross the *‘said boundary line.’’ Sec-

tion 16 of the Act of 1799 refers to persons ‘‘found in the Indian

country over andbeyond the said boundary line.’’ The 1834 Act

States specifically in section 2 that trade with the Indians ‘‘in

''The district court rejected the State’s argument as being inconsis-

tent with the 1834 Act’s description of Indian country as existing

solely outside the jurisdiction of the states. We note, however, that

section 29 of the 1834 Act retained the provisions of the 1802 Act as

they applied to tribes east of the Mississippi. We therefore rely upon

other evidence found in the various Acts.

l4a

the Indian country” is prohibited unless a license is first ob-

tained from the government. The term ‘Indian country’’also

appears in sections 3, 4, 6, 7, 10, 16, 17, 20, 23, 24, and 25 of the

1834 Act. Yet as noted earlier, the Nonintercourse statute

contained in the 1834 Act makes no mention of any geographic

limitation.

Aside from the plain language of the Nonintercourse sta-

tute and the fact that the term ‘‘Indian country’ does appear in

other sections of the Act, other elements of the structure of the

‘ Act also rebut the State’s argument. First, as noted by the

district court, the “‘surrounded by settlements’’ exception

would make no sense if the Acts as a whole were meant to apply

only to Indian country,'? since no territory within Indian coun-

try could have been so surrounded. Second, as also noted by

the district court, the provision respecting the President's

power to take measures to prevent the sale of alcohol to the

Indian tribes, originally adopted in the 1802 Act without any

language of geographical limitation, was amended in 1822 to

state that the President would be given the power in particular

to authorize searches of the wares of traders upon information

that ‘ardent spirits’’ were being ‘‘carried into the Indian coun-

tries by said traders.’’ Act of May 6, 1822, ch. 581, 3 Stat. 682.

When incorporated into the 1834 Act, the provisions relating to

alcohol were specifically limited to “Indian country.’ 1834

Act, § 20. These changes would have been unnecessary had the

1802 Act applied oniy in Indian country.

Third, it is particularly striking that despite the large

number of references to Indian country and Indian territory

contained in the Acts, mentioned above, a number of other

provisions including the Nonintercourse statutes contain no

language of geographic limitations. These provisions contain

'2The State’s argument, in the alternative that this exception applies

to eastern land transactions is discussed below.

lSa

restrictions respecting trade simply with ‘‘any Indian tribe”’ or

respecting ‘‘lands belonging to any Indian tribe.’’ For example,

section 5 of the 1793 Act imposes penalties for making a settle-

ment upon ‘“‘lands belonging to any Indian tribe.’’ Similarly,

section 9 of the 1793 Act provides for furnishing services to

‘*the friendly Indian tribes’’ without geographic limitation. Yet

Section 6 of the 1793 Act specifically prohibits horse trading

without a license ‘‘in the Indian territory.’’ Thus examination

of the provisions of the 1793 Act suggests that Congress was

careful to distinguish between regulations applicable only to

Indian country and those applicable to all Indian tribes and

their lands. Further examples could be drawn from the sub-

sequent Acts. We conclude that, by failing to use language

restricting applicability of the Nonintercourse statute, Con-

gress intended the statute to apply throughout the United

States.

Indeed, as noted by the district court, the only arguments

with respect to the language cf the Acts that the State can

muster in support of its view that the Nonintercourse staute

applied solely in Indian country are rather tenuous. The State

first points to the titles of the various Acts. For example, the

1796 Act is entitled, ‘‘An Act to Regulate Trade and Inter-

course with Indian Tribes and to Preserve Peace on the Fron-

tiers.’’ From this, the State argues that the statute was con-

cerned only with land transactions on the frontiers. Apart from

the purposes of the Acts, which we will discuss below, it is

sufficient to note here that the *‘Peace on the Frontiers”’ lan-

guage was not contained in the titles of the 1790 or 1793 Acts,

and that, although useful in interpretation of ambiguous provi-

sions, the title of an Act cannot be held to contradict the more

specific language contained in the body of the Act.

The only other argument based upon statutory language

concerns the provisos contained in the 1796, 1799 and 1802

Acts’ description of the Indian boundary. These provisos

stated that if the boundary is subsequently altered by treaties

l6a

with the Indians, ‘‘all the provisions contained in [the Acts]

shall be construed so as to apply to the said line so to be varied

in the same manner, as said provisions apply. by force of [these

Acts] to the boundary line hereinbefore.’ (Emphasis added.)

The State emphasizes the first few words of the proviso. but

when read as a whole it is quite plain that the proviso applied if

subsequent treaties should alter the boundary and provided

that those sections which did apply to the boundary would

similarly apply to any new boundary established by those

treaties. Hence, those sections that did not apply to the bound-

ary would be left unaffected.

Thus, the conclusion to be drawn from the langtiage of the

Nonintercourse statute and the various Acts is that the statute

was meant to apply to Indian land throughout the United

States. In regulating relations with the Indians, Congress im-

posed certain restrictions on transactions occurring in Indian

country and certain others to those involving Indians situated

throughout the United States. The Nonintercourse statute,

containing no language of limitation, must then be read as

applying to all Indian lands.

Ill. LEGISLATIVE AND JURISDICTIONAL HISTORY

Connecticut, however, makes a number of arguments for

its interpretation of the statute based upon external evidence:

first, the State argues that the purposes of the Trade and Inter-

course Acts were both to preserve peace on the frontier and to

enforce treaty obligations and that neither of these purposes

would require protection of lands outside of Indian country.

Moreover, it finds support for these views in the history of

English and colonial legislation regarding Indian lands as well

as federal Indian policies during the Confederation. Finally. the

State points to evidence of executive branch interpretation of

the Acts also indicating that the Acts were understood to leave

land transactions with eastern Indian tribes to the control of the

States. We are not persuaded.

17a

As the Supreme Court has noted with respect to Indian

legislation and treaties, *‘[t}hese instruments . . . cannot be

interpreted in isolation but must be read in light of the common

notions of the day and the assumptions of those who drafted

them.”* Oliphant v. Squamish Indian Tribe, 435 U.S. 191, 206

(1978): accord, Wilson v. Omaha Indian Tribe, 442 U.S. 653,

666 (1979). Certainly, courts should never ignore strong extrin-

sic evidence which may serve to explain the meaning of statu-

tory enactments, particularly when the statutes are as deeply

embedded in American history as are those relevant here.

Legislative history is practically nonexistent on the par-

ticular issue of geographic applicability. There is only a single

sentence in the House Report on the 1834 Act which suggests

that that Act was meant only to apply outside the jurisdiction of

any of the states.'* However, as the district court recognized,

the effect of this isolated statement is undercut by the sub-

sequent amendment to the Act which added section 29 — the

section which continued ineffect provisions of the 1802 Act

insofar as they applied to Indians east of the Mississippi.

Apart from this, the State’s argument as to Legislative

intent is not so much directly on the point of geographic

applicability as it is on the motivation for granting federal

protection to the Indians. The evidence suggests that federal

Indian policy was based upon the need to prevent Indian upris-

ings. Accordingly, certain concessions were granted to the

Indian tribes in order to avoid the necessity for large-scale

military intervention.

Thus. the State directs our attention to statements by

President Washington, and his Secretary of War, Henry Knox,

‘** This billis intended to apply to the whole Indian country . . .; it will

continue to embrace only those sections of the country not within any

State... .’ H.R. Rep. No. 474 23d Cong., Ist Sess. 10 (1834).

18a

both of whom played a large part in developing the original

Trade and Intercourse Act. regarding the necessity of restrain-

ing settlers from encroaching upon Indian lands on the frontier,

since these encroachments were a constant source of Indian

unrest.'* The State also points to the writings of several histo-

rians respecting Washington's and Knox’s desire to satisfy the

concerns of the Indians over the activities of settlers along the

frontier.'* While the evidence rather convincingly de-

monstrates that the nation’s early leaders were perhaps not so

charitable toward the Indians as we have come to view them,

and although this evidence quite readily demonstrates that

contemporary attitudes have colored our views of the original

motives behind American Indian policy. we do not believe that

the evidence in any way rebuts the Nonintercourse statute's

applicability to Indian lands throughout the United States. Of

course, Washington and Knox and their countrymen were

concerned not only with protecting the Indians, but with pre-

venting the onset of overt hostilities. Moreover, it is true that

peace along the frontier, and in particular the prevention of

encroachment by non-Indian settlers on Indian lands along the

frontiers, were primary objects of the Act’s land provisions.

Nevertheless, there is nothing inconsistent with these views in

reading the Nonintercourse statute, as its language suggests, to

include encroachment upon Indian lands throughout the

United States. Such a promise may well have been thought best

to mollify the apprehensions of Indians on the frontier as well

as those in the settled regions. Surely it would have furnished

evidence to the Indians of the seriousness of the federal gov-

'4See, e.g., various statements by President Washington printed in |

J. Richardson, Messages amd Papers of the Presidents 59-60, 61,

67-68, 71, 104: and Knox’s report to Congress printed in 2 American

State Papers — Indian Affairs 53.

'SSee,e.g., F. Prucha, American Indian Policy in the formative years:

The Indian Trade and Intercourse Aci. _790-1834 43-45, 48 (1962): S.

Tyler, A History of Indian Policy 39 (1973): R. Horseman, Expansion

and American Indian Policy 69-70 (1967).

19a

ernment’s intention to regulate land sales, a matter of great

concern to the Indians.

The State also points to considerable evidence that the

Acts were designed to enforce various obligations imposed by

treaties with the Indians entered into by the federal govern-

ment, and therefore the Acts were not concerned with the

eastern tribes with whom no treaties were held. One of the most

prominent commentators on Indian Law, Felix Cohen, has

written that ‘‘each of the substantive provisions of the first

Indian Trade and Intercourse Act fulfilled some obligation

assumed by the United States in treaties with various Indian

tribes,’’ and that this analysis *‘would probably apply equally

to each of the later trade and intercourse acts.’’ F. Cohen,

Handbook of Federal Indian Law 69-70 (1945). However, this

does not support the view that the framers of Indian legislation

did not also wish to protect Indian tribes located throughout the

United States. Indeed, it may well have been to placate tribes

located on the frontier or with whom the United States had

entered into treaties that federal protection was granted to all

Indian lands.

We thus agree with the district court that there is no

evidence demonstrating that peace on the frontier and en-

forcement of treaty obligations were the sole purposes of the

various Acts. We share the district court’s intuition that if the

states were meant to retain control over eastern Indian lands,

some evidence of such authority would exist. Finally, as just

noted, it would seem consistent with the goals of the early

administrations to convince the Indians both on the frontier

and elsewhere that the federal government meant to take into

its own hands the problems of intrusions upon Indian property

wherever they might occur.

As for the evidence regarding Indian policy preceding the

various Trade and Intercourse Acts, we believe that examina-

tion of this history, outlined above, rebuts rather than supports

20a

the State’s position. As noted earlier, from the time of the

Royal Proclamation of 1763, it was the policy of the sovereign

to retain control over land transactions with the Indians in the

central government, first the British Crown and later the fed-

eral government. The only period during which this was not the

case was during the Confederation. During that period, as

outlined above in discussing the Resolve of 1783, federal Indian

policy was constrained by the limits imposed by Article 1X of

the Articles of Confederation. It was dissatisfaction with these

limitations that led to the expansive definition of federal power

to deal with the Indians under the Commerce Clause of the new

Constitution. The State’s argument that the new Congress

declined to exercise its expanded powers and chose instead to

maintain Indian policies established during the Confederation

is highly implausible. Aside from lacking any support in the

language of the enactments subsequent to the Constitution, or

in any decisions of the courts, it is also rebutted by the history

recited above suggesting that under its expanded powers Con-

gress reverted to the policy established long before the Confed-

eration that the sovereign would control all transactions with

the Indians.

Lastly, the State asserts that evidence of the interpretation

of the Acts by the executive branch supports its position.

Admittedly, **(l]ongstanding, contemporaneous executive and

administrative interpretation by those entrusted with the en-

forcement of ambiguous legislation may also shed light upon an

appropriate construction’’ of statutory language. Leary v.

United States, 395 U.S. 6, 25 (1969). The State points out that

President Washington himself wrote in 1792 that the New Eng-

land tribes were “‘so situated as to be rather considered a part of

the inhabitants of the State of Massachusetts than otherwise,

and that State has always considered them under its immediate

care and protections.’’ Letter to Archbishop John Carroll,

quoted in P. Guilsday, The Life and Time of John Carroll 607

(1954). In more recent times, the federal government re-

peatedly disclaimed any responsibility for managing the affairs

2la

of the eastern tribes. See Letter, W. A. Jones, Acting Commis-

sioner of Indian Affairs to Francis M. Morrison, Esq., July 10,

1899; Letter, Commissioner of Indian Affairs C. J. Rhoades to

Mrs. Edith M. Smith, October 12, 1931.

Nevertheless, the fact that the federal government dis-

claimed responsibility for these tribes is not determinative

here. We believe that, although considerable evidence amas-

sed by the State supports the proposition that the federal gov-

ernment did not avail itself cf the provisions of the Noninter-

course statute and appeared to leave management of the affairs

of the eastern tribes to the individual states, it does not follow

that the federal government had no obligation to do so, or that

the states had the authority — unimpeded by the Acts — to buy

land from the eastern tribes without federal approval. We note,

moreover, that there is no mention of any reliance by the

federal government upon any geographical limitations con-

tained in federal Indian legislation in the evidence offered. We

also note that none of the evidence concerns land transactions.

IV. CASE LAW

The State, finally, relies upon statements in the case law

which are said to determine the question of geographic applica-

bility of the various Nonintercourse statutes and the Trade and

Intercourse Acts as a whole. In our view, however, the case

law is inconclusive on the issue.

The State points first to early decisions containing lan-

guage suggesting that the Trade and Intercourse Acts were

meant to be confined to Indian country. InAmerican Fur Co. v.

United States, 27 U.S. (2 Pet.) 357, 369 (1829), for example, the

Supreme Court stated that ‘‘all the provisions contained in [the

1802] Act, and consequently, those contained in the amenda-

tory act of 1822, are by [the first section] expressly confined" to

22a

‘Indian country.”’ The Court, in American Fur, however, was

concerned with the question of penalties for those found bring-

ing ‘“‘ardent liquors’’ into Indian country for trade with the

Indians, and it held that only those goods of the traders found

within Indian country were to be forfeited. The Court was

construing only that section of the Act, added by amendment in

1822, respecting importation of liquor into Indian country and

the penalties for doing so. Similarly, in Bates v. Clark, 95 U.S.

204, 205 (1877), the issue was whether goods seized by Ameri-

can military officers after finding that the owner intended to

import liquor into Indian country for trade purposes, were

properly seized inside of Indian country. While the Court used

broad language respecting the applicability of the Act, it was

only interpreting provisions relating to penalties for importa-

tion of alcohol, by that time contained in section 20 of the 1834

Act, and further amended by statute in 1864. While admittedly,

the statements made in bothAmerican Fur and Bates suggested

that all the provisions of the Acts, including the Noninter-

course statute, were limited to operation to Indian country, the

Court in those cases was concerned with particular provisions

of the Acts and suggested only that the trade and intercourse

provisions were generally limited to Indian country.

The State also points to language, generally dicta, in vari-

ous decisions recognizing state control over the eastern tribes.

See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 580 (1832)

(McLean, J., concurring). It should be noted, however, that

these comments were made in the context of constitutional

decisions respecting the reach of federal control over the In-

dian tribes. On these issues, Justice McLean’s views, while

shared by certain state courts, see, ¢.g., State v. Doxtater, 47

Wis. 278, 2 N.W. 439 (1879), never commanded a majority of

the Supreme Court. Instead, the majority view was that stated

by Chief Justice Marshall in the Worcester opinion, noting that

federal authority over Indian affairs was plenary, and that the

grant to regulate ‘‘Commerce’’ among the Indian tribes gave

23a

the federal government authority to regulate practically all

aspects of Indian affairs.'®

Third, the State cites a number of early decisions respect-

ing Indian land tenure. See, ¢.g.. Mitchel v. United States, 34

U.S. (9 Pet.) 711 (1835): Cherokee Nation v. Georgia, 30 U.S.

(S Pet.) 1, 31 (1831) (Baldwin, J., concurring); Johnson v.

M’Intosh, 21 U.S. (8 Wheat.) 543 (1823); New Jersey v. Wilson,

11 U.S. (7 Cranch) 164 (1812): Fletcher v. Peck, 10 U.S. (6

Cranch) 87 (1810). Most of these cases are concerned with

various conveyances by the states of lands formerly held by the

Indians. None of them suggests limitations on the applicability

of the Nonintercourse statute.

Most of the decisions cited involved transfer of a state’s

‘“‘fee’’ interest subject to the right of Indian occupation.

Fletcher v. Peck, supra; Johnson v. M'Intosh, supra. In New

Jersey v. Wilson, supra, the Indians had abandoned the land in

question and the only issue was whether the land was still

non-taxable. Justice Baldwin’s comments in Cherokee Nation,

supra, also refer to the fact that, although the states were

‘*seized in fee,’ the states’ interests were subject to the Indian

rights of occupation. Finally, in Mitchel, supra, the Court was

analogizing to certain decisions holding that state land grants

would be held valid as to land within the States, but invalid as to

lands in Indian country. In the cited decisions, however, Winn

v. Patterson, 34 U.S. (9 Pet.) 663 (1835): Danforth v. Wear, 22

22 U.S. (9 Wheat.) 673 (1824); Patterson v. Jenks, 27 U.S. (2

Pet.) 216 (1829), not only did all of the state land grants predate

the Indian Trade and Intercourse Act of 1790, but one of the

decisions, Danforth v. Wear, supra, made clear that even as to

those transactions the state’s interest could only be conveyed

subject to the extinguishment of Indian title. Thus, the early

'6The story of Justice McLean's dispute with Chief Justice Marshall,

and the ultimate victory of the latter’s views, may be found in M.

Price, Law and the American Indian 40-68 (1973).

24a

decisions of the Supreme Court do not support the State’s

position that the Nonintercourse statute applied solely in In-

dian country.

We turn then to the two most recent opinions bearing upon

this subject. each of which contains language providing some

support for the positions urged by the two parties in this appeal.

In Oneida Indian Nation v. County of Oneida, 414 U.S. 661

(1974), the Court held that there was federal jurisdiction to hear

a claim for ejectment based upon Indian title, since that title

rested upon federal law. In the course of its opinion, the Court

noted that:

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, includ-

ing 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 preemptive right to purchase

from the Indians, was inthe State, Fletcher. Peck, 6

Cranch 87, 3 L.Ed. 162(1810). But this reality did not

alter the doctrine that federal law, treaties, and sta-

tutes protected Indian occupancy and that its termi-

nation was exclusively the province of federal law.

414 U.S. at 670 (footnote omitted).

Most recently, in Wilson v. Omaha Indian Tribe, 442 U.S.

653 (1979), the Court held that the present-day descendant of

section 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 lowa and an Indian tribe. As

one of the reasons in support of its conclusion, the Court noted

that the original section 22 was incorporated into the 1834 Act

which, according to the Court, was meant to apply only “‘to the

25a

whole Indian country.’ 442 U.S. at 667, quoting H.R. Rep. No.

474, 23d Cong., Ist Sess. 10 (1834). Thus, the Wilson court

believed that in adopting section 22, the Congress had in mind

only land disputes arising outside the jurisdiction of any state.

Although the district court found Oneida’s language more

closely on point than Wi/son’s, we believe that neither is de-

terminative here. Regardless of whether the quoted language

from Oneida is dictum or not, it suggests only that all Indian

land transfers were subject to federal control and that extin-

guishment of Indian title is a federal question. It does not

necessarily hold that the specific provisions of the Noninter-

course statute applied to all of those transfers. Instead, it would

be consistent with Oncida to hold, as the State argues, that land

transfers in Indian country were to be governed by the statute,

but that the exclusion of eastern lands from the Nonintercourse

statute meant that the “‘federal law”’ as to those lands was to

allow the states to purchase them.

At the same time, Wi/son does not persuade us to find that

the Nonintercourse statute was so limited. Wilson involved the

construction, of a provision enacted independently of other

Indian legislation and added to the Trade and Intercourse Act

in 1834. Once again, it must be recalled that section 29 of the

1834 Act provided that the 1802 Act would remain in effect with

respect to tribes located east of the Mississippi. Thus, while

section 22, relating to the burden of proof in land disputes, may

have been meant to apply only within the Indian territory

specified in section | of the 1834 Act, there is no reason to

conclude that the Nonintercourse statute, contained in both the

1802 and 1834 Acts, was also so limited. Nothing in Wilson

reflects at all upon the geographic applicability of the previous

Trade and Nonintercourse Acts, and therefore, even if it were

to be held that the 1834 Nonintercourse statute was limited

territorially, the Nonintercourse statute contained in the 1802

26a

Act remained applicable by virtue of section 29 of the 1834 Act

to the tribes east of the Mississippi.'’

We conciude that the case law does not support the State’s

contention that we should ignore the plain language of the

Statute and limit the Nonintercourse statute’s applicability.

Moreover, while no case is controlling on the issue, Oneida

does make clear that the extinguishment of all Indian title was

meant to be a matter of federal concern. Since we have found

no evidence that Congress intended to treat eastern Indian

lands in a different manner, it would seem reasonable to believe

that Congress intended a unified federal policy toward land

acquisition from the Indians. In any event, we find nothing in

the case law which dissuades us from or conclusion that Con-

gress intended the Nonintercourse statute to apply throughout

the United States.

V. “SURROUNDED BY SETTLEMENTS” EXCEPTION

As we conclude that the Nonintercourse statute was in-

tended to apply to lands throughout the United States, we must

consider the State’s contention that the ‘‘surrounded by set-

tlements’’ exception was intended to exempt from the various

provisions of the Trade and Intercourse Acts transactions,

including those involving land, with Indians residing in the

settled areas of the eastern States. The district court disposed

of this issue by adopting the view put forth in Narragansett

Tribe v. Southern Rhode Island Land Development Corp., 418

F. Supp. 798, 808-09 (D.R.1. 1976). 483 F. Supp. at 599, n.9. In

Narragansett, the district court held that the ‘‘surrounded by

'7We are aware that, after the Wi/son decision was announced, the

Solicitor General filed a motion for modification of the Wi/son opin-

ion, fearing that, by the language in Wi/son, the Supreme Court had

inadvertently foreclosed the various Indian eastern land claims. This

motion was denied. Nevertheless, we do not believe this was a

decision on the merits of the claims. The Court may have thought, as

we do, that its opinion did not foreclose those claims.

27a

settlements’ exception applied only to trade with individual

Indians who had left their tribes and chose to reside in non-

Indian settlements. This interpretation was also accepted by

the district court in Mashpee Tribe v. Town of Mashpee, 447 F.

Supp. 940 (D. Mass. 1978), aff'd on other grounds sub nom.

Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.)

cert. denied, 444 U.S. 866 (1979).

We find this issue more troublesome than did the district

court. It accepted the reasoning of Narragansett that the ex-

ception applied only to individual Indian land transactions

because the exception was eliminated in the i834 Act at the

Same time that the Nonintercourse statute was amended to

exclude coverage of land transactions with individual Indians.

418 F. Supp. at 808-09. There are difficulties with this reading

of the exception. The most serious one would seem to be that

there is no necessary connection between the elimination of the

exception, which did not contain any language suggesting that

it was an exception solely to the Nonintercourse statute itself.

Indeed, the exception provided for ‘‘trade and intercourse”’

with Indians surrounded by non-Indian settlements, and thus,

it must have applied to the trade and intercourse provisions as

well. Yet examination of the 1834 Act reveals that the Act

continued to proscribe certain types of transactions even with

individual Indians or upon property owned by individual In-

dians. See, e.g., § 7 (purchase or receive of any Indian’’): § 9

(‘‘on any land belonging to any Indian or Indian tribe’’): § 20

(‘sell . . . any spiritous liquor or wine to an Indian’’).

Further doubts about the Narragansett court’s approach

are rasied by considering the origin of the ‘‘surrounded by

settlements”’ exception. The exception derived from a proviso

in section | of the original 1790 Act. That proviso stated that

‘‘the President may make such order respecting the tribes

surrounded in their settlements by the citizen of the United

States, as to secure an intercourse without license, if he may

deem it proper.’’ While in subsequent Acts, the exception

28a

stated merely that it applied to transactions *‘with Indians,”’ it

does not appear that Indian tribes surrounded by settlements

were meant to be excluded. Indeed, the term “Indians” stand-

ing alone in the Acts has generally been interpreted to include

both individual Indians as well as Indian tribes. Wilson, supra,

442 U.S. at 665-66.'*® It thus appears that the exception was

meant to apply to transactions both with individual Indians and

with tribes whenever either was situated on lands surrounded

by non-Indian settlements.

While these considerations suggest that the district court

was incorrect in its reading of the exception, they do not

compel acceptance of the State’s position that the exception

was intended to exclude land transactions by eastern tribes.

Instead, we find most persuasive the position advanced here by

the Mohegan Tribe: that the ‘“‘surrounded by settlements”’

exception was not meant to apply to land transactions at all. As

just noted, the exception first appeared as a proviso in the first

section of the 1790 Act. That section required that all **trade

and intercourse’’ with Indian tribes be undertaken only by

those possessing licenses from the federal government. The

land provisions, which applied at the time to both individual

and tribal lands, were contained in a separate section. In sub-

sequent Acts, the only change was to place the exception ina

separate section. Thus, it would appear that no substantive

changes were intended by this alteration beside the important

one of withdrawing the matter from Presidential discretion and

making it mandatory. Moreover, the change from * tribes” in

'8Moreover, in other sections of the Acts the term ‘‘Indians”’ is used.

when Congress clearly intended to refer to Indian tribes. For exam-

ple, in certain of the Nonintercourse statutes themselves a proviso

states that ‘‘it should be unlawful for the agent or agents of any state,

who may be present at any treaty held with /ndians, under the

authority of the United States . . . to adjust with the Indians, the

compensation to be made, for their claims to lands with such state. . .

.’ (Emphasis supplied.) Treaties were made only with Indian tribes,

not with individual Indians.

29a

the 1790 Act to ‘“‘Indians’’ in subsequent Acts is explained

simply by the fact that section | of the 1790 Act itself applied

only to trading with ‘‘the Indian tribes,’’ while the subsequent

Acts also restricted certain types of trade with individual In-

dians. See, e.g., §6 ofthe 1793 Act and §§ 9-10 of the 1796 Act.

The land provisions of the Acts, however, always re-

mained distinct from those regulating ‘‘trade and intercourse.”’

Thus, it appears that the ‘‘surrounded by settlements”’ excep-

tion was meant to apply only to the latter. The elimination of

the exception in the 1834 Act is more plausibly explained by the

fact that the 1834 Act specifically limited its trade restrictions

to Indian country, see e.g., §§ 2, 6, 7, although once again, it

must be recalled that section 29 of the 1834 Act continued in

effect those provisions of the 1802 Act applicable to tribes east

of the Mississippi. Thus, the exception would seem to have

remained applicable to trade and intercourse with certain of the

eaStern tribes, but not to any land transactions with the states.

That the 1834 Act eliminated land transactions with individual

Indians from the coverage of the Act is of no significance.

We agree with the district court that the Nonintercourse

Statute was not intended to be applicable solely in Indian coun-

try. We also hold that the *‘surrounded by settlements’’ excep-

tion was not meant to apply to Indian land transactions. The

order denying defendant’s motion to dismiss is affirmed.

30a

APPENDIX B

DISTRICT OF CONNECTICUT

MOHEGAN TRIBE

Vv. : Civit No. H-77-434

STATE OF CONNECTICUT

RULING ON MOTION TO DISMISS

This is a civil action for possession of land now allegedly

owned and used by the State of Connecticut. The plaintiff, the

Mohegan Tribe of Indians, claims that certain lands located in

the northeast portion of the Town of Montville, Connecticut

were ‘from time immemorial .. . until [the] defendant's

predecessor-in-title . . . purported to claim title to the {land},

exclusively owned, used, and occupied’* by the Mohegans. It

further claims that the property was held by the Tribe at the

time of the enactment of the first Indian Trade and Intercourse

Act in 1790. Act of July 22, 1790, ch. 33, 1 Stat. 137 (°° 1790

Act’’). That act and its successors provided, in part, that con-

veyances of Indian land to non-Indians would be invalid unless

made by treaty under the authority of the United States.' Since

the Indians held the land at the time of the Act and since no

federal treaty has ever been made with them, they claim that

the land is rightfully theirs.

'In this opinion, the court refers to the Indian land transfer provision,

currently codified at 25 U.S.C. § 177, as the **Nonintercourse’’ sta-

tute. The Nonintercourse statute was always enacted along with

other Indian statutes, the whole body of which will be referred to

herein as the ‘‘Trade and Intercourse Act’’ or more simply as the

‘*Act.”’ While the Nonintercourse statute prohibited certain land

transactions with Indians, the remaining provisions of the Trade and

Intercourse Act swept more broadly. At different times the Act has

regulated trade in such diverse products as whiskey, guns, horses,

and pots and pans, as well as jurisdiction for criminal prosecutions. It

is currently codified in Titles 25 and 26 of the United States Code.

31a

Connecticut has filed a motion to dismiss this action. It

bases its motion on a claim that the Trade and Intercourse Acts

were not intended to apply to Indian tribes which were located

to the east of the ‘‘Indian country’ borderline. That borderline

was defined for the first time in the 1834 enactment of the Trade

and Intercourse Act.2 but it is conceded that at no time between

1790 and the present have the Mohegans been residents of

“Indian country.”’ If. as the State contends, the Noninter-

course statute applied only in Indian country, the case should

he dismissed.

The current Nonintercourse statute, 25 U.S.C. § 177, and

its predecessors, are all put in issue by the plaintiffs complaint

and the defendant's answer. Since each reenactment of the

Nonintercourse statute was primarily based on the language of

the prior statute. however, the proper starting point for any

inquiry lies in the original 1790 Act. It provided in pertinent part

that:

‘no sale of lands made by any Indians, or any nation

or tribe of Indians, within the United States, shall be

valid to any person or persons, or to any state,

whether having the right of preemption to such lands

or not, unless the same shall : made and duly exe-

cuted at some public treaty. held under the authority

of the United States.”

1790 Act. § 4(emphasis added). The Act of March 1, 1793, ch.

19, 1 Stat. 29 (°1793 Act’’), which supplanted the 1790 Act.

provided.

‘**That no purchase or grant of lands, or of any title or

claim thereto, from any Indians, or nation or tribe of

Indians. within the bounds of the United States. shall

“Act of June 30. 1834. ch. 161. § 1, 4 Stat. 729.

32a

be of any validity in law or equity, unless the same be

made by treaty or convention entered into pursuant

to the Constitution: . . . [I]t shall be lawful for the

agent or agents of any State .. . under the authority of

the United States. . . . to propose to, and adjust with

the Indians, the compensation for their claims to

lands within such States... .”’

1793 Act, § 8(emphasis added). Because of a section in the 1793

Act which provided that the entire Act was to expire automati-

cally after approximately two years,’ the legislature reenacted

the same Act in 1796.4 With essentially the same language, the

Act was again reenacted in 1799° and 1802.°

In 1834, the Nonintercourse statute took on the shape

which it has had to present day.’ With only one relevant excep-

tion, the language of the section on land conveyances is identi-

cal to the language in the corresponding section of the 1793 Act.

The only exception is the ommission of the words *‘ within the

bounds of the United States.’ These words do not appear inthe

1834 Act and since then no geographic limitation whatsoever

has replaced them.

In spite of the fact that the Nonintercourse statute was

enacted five times with the explicit words ‘within the United

States’’ and still contains no explicit limitations, the defendant

insists that the statute should be read as limited solely to

‘Indian country.’’ Connecticut bases this claim on the legisla-

tive intent and history lying behind the Trade and Intercouse

31793 Act, § 15.

*Act of May 19, 1796, ch. 30, | Stat. 469 (°° 1796 Act’’).

SAct of March 3, 1799, ch. 46, 1 Stat. 743 (°° 1799 Act’’).

Act of March 30, 1802, ch. 13, 2 Stat. 139 (°° 1802 Act’).

7Act of June 30, 1834, ch. 161, § 12, 4 Stat. 729 (°° 1834 Act’),

33a

Acts and on other sections of the Acts which do contain ex-

press geographic limitations.

Resolution of this motion only requires the court to con-

strue the Nonintercouse statute. Arguments over the meaning

of this short, three-sentence provision, however, have gene-

rated in excess of 300 pages of briefing, extensive research, and

elaborate appendices. The arguments advanced by both parties

can be grouped into three categories. Some are based on the

language of the Acts themselves, some are based on their

historical context, and others are based on prior case law. This

opinion considers each of these three sets of arguments sepa-

rately.

The Language of The Act

In a case involving the interpretation of a statute, analysis

must begin with the language of the statute itself. Touche Ross

& Co. v. Redington, 47 U.S.L.W. 4732, 4734 (U.S. June 19,

1979). The language of the Trade and Intercourse Acts does not

support the defendant's motion. In addition to the explicit

references to ‘‘within the bounds of the United States’’ found

in the land conveyance section, the language of several other

sections in these Acts suggest that their application is not

limited to Indian country.

For instance, from 793 until 1834, every Act contained a

‘**surrounded by settlements” provision.* Under this provi-

sion, the terms of the Act were not *‘to be construed to prevent

any trade or intercourse with Indians living on lands sur-

rounded by settlements of the citizens of the United States and

being within the ordinary jurisdiction of any of the individual

1802 Act, § 19: 1799 Act. § 19: 1796 Act, § 19: 1793 Act, § 13.

34a

States... .°°? At the time, there were no such surrounded

Indians in the area defined as Indian country. If, as the defen-

dant contends, the entire Trade and Intercourse Act was to

apply only to Indian country, it would have served no purpose

to exempt Indians living outside Indian country. It must be

assumed that Congress knew what it was doing when it enacted

the Act: this court is not inclined to give the Act an interpreta-

tion which will render portions of it meaningless. Reiter v.

Sonotone Corp., 47 U.S.L.W. 4673, 4674(U.S. June 11, 1979);

Colautti v. Franklin, 439 U.S. 379, 392 (1979).

Another rule of statutory construction also lends support

to the plaintiff's position. In 1802, Congress added section 21 to

the Act, which provided: yi

*Defendant has al:o advanced an argument based on these sections.

Connecticut claims that by their express terms these sections exclude

Indians surrounded by white citizens from the protection of the Trade

and Intercourse Acts. Thus, since the Mohegan Tribe had been sur-

rounded by white citizens since well before 1790, Connecticut argues,

it never was entitled to the protection of the Nonintercourse statute.

The flaw in this argument, however, stems from reading the word

‘*Indian’’ in these sections to include Indians living in tribal com-

munities. As one court has recently stated:

‘At the time that this proviso was a part of the Act, the

terms of the Act applied in land of ‘any Indian’ as well as to

that of any ‘nation or tribe of Indians.’ The provision was

repealed in 1834, ... at the same time that transactions by

individual Indians were removed completely from the

coverage of the Act... . Thus the most logical interpreta-

tion of the proviso is the one which is also the most

consistent with the rules of construction governing sta-

tutes relating to Indians .. . : the proviso was addressed to

transactions by individual Indians living in ‘white’ settle-

ments and has no application to land to which afribal right

of occupancy is claimed.”’

Narragansett Tribe v. Southern Rhode Island Land Development

Corp., 418 F. Supp. 798, 808-809 (D.R.1I. 1976).

35a

‘‘That the President of the United States be au-

thorized to take such measures, . . . to prevent or

restrain the vending or distributing of spirituous

liquors among all or any of the said Indian tribes,...

(Emphasis added).'°®

In 1822, however, Congress deemed it advisable to amend this

section so as to limit its applicability to Indian country:

‘That it shall and may be lawful for the President of

the United States, in execution of the power ves edin

him by the twenty-first section of the act of the thir-

tieth of March, one thousand eight hundred and two,

aforesaid, [the Trade and Intercouse Act] to which

this is an amendment, to direct .. . [certain persons]

to cause the stories and packages of goods of all

traders to be searched, upon suspicion or informa-

tion that ardent spirits are carried into the Indian

countries by said traders in violation of the twenty-

first section of the act to which this is anamendment .

’°

(Emphasis added).!'!

‘‘Itis acanon of statutory construction that where, as here, the

words of a later statute differ from those of a previous one on

the same or a related subject, the legislature must have in-

tended them to have a different meaning.”’ Klein v. Republic

Steel Corporation, 435 F.2d 762, 765, 766 (3d Cir. 1970). Thus,

it seems unlikely that the 1822 amendment would have been

necessary had the 1802 Act been entirely limited to Indian

country. On the contrary, the logical conclusion to draw from

101802 Act, § 21.

''Act of May 6, 1822, ch. 58, 3 Stat. 682.

36a

this amendment is that when Congress wanted to limit the

effect of a particular provision it was quite aware of how to do

SO.

In addition to these provisions, the specific provision con-

cerning land transfer has a clue to its geographic applicability

imbedded within it. Under the terms of every Act enacted after

1790, the ‘‘agents of States’’ were allowed to negotiate with

Indians (under federal auspices) for claims to lands ‘* within

such States.’’'? This makes it clear that the Nonintercourse

statute was meunt to apply within state boundaries. Defendant

apparently concedes as much, but it points out that the bound-

ary to Indian country ran through the western parts of some of

the original 13 states. Thus, it claims that this proviso was

meant to apply to land which was both in Indian country and

within the boundaries of states. While this argument sustains

the state’s position for some of the earlier Acts, the 1834 Act,

which contains the same proviso, expressly indicates that In-

dian country lies only outside of states.'? It is therefore logi-

cally impossible to conclude both that the Act was meant to

apply within the boundaries of a state, a conclusion mandated

by the express language of the provision, and that the Act

applied only to Indian country, a conclusion drawn by the

defendant. This, then, is further strong support for the plain-

tiff's position.

'21834 Act, § 12; 1802 Act, § 12: 1799 Act, § 12; 1796 Act, § 12, 1793

Act, § 8.

'3**That all that part of the United States west of the Mississippi, and

not within the States of Missouri and Louisiana, or the Territory of

Arkansas and, also, that part of the United States east of the Missis-

sippi river, and not within any State to which Indian title has not been

extinguished, for the purposes of this act, be taken and deemed to be

the Indian country.”’ 1834 Act, § 1.

In order better to understand the awkward language of this section, it

is helpful to inse-t a comma following the phrase *‘and not within any

State.’’ Such an insertion is in accord with the intended meaning of

the section.

37a

In opposition to these arguments, the defendant can mus-

ter only paltry support from the language of the Act. For

instance, it argues that the title of the Act, ‘*Act to Regulate

Trade and Intercourse with Indian Tribes and to Preserve

Peace on the Frontiers,’ suggests that the Act was solely

designed to govern relations with frontier tribes. But, for what-

ever significance should be given to the title,'* it is perhaps

more accurate to say that it describes two objectives, only one

of which dealt exclusively with frontier tribes. Moreover, the

titles to the 1790 and 1793 Acts did not contain the **Peace on

the Frontier’ language upon which the defendants rely, even

though they did include the restrictions on land convenances at

issue here.

Defendant also argues that the extensive delineation of a

boundary line in the Act must signify that the entire Act was to

'4**(Hjeading and title are not meant to take the place of the

detailed provisions of the text. Nor are they necessarily

designed to be a reference guide or a synopsis. Where the

text is complicated and prolific, headings and titles can do

no more than indicate the provisions in a most general

manner; to attempt to refer to each specific provision

would often be ungainly as well as useless. As a result,

matters in the test which deviate from those falling within

the general pattern are frequently unreflected in the head-

ings and titles. Factors of this type have led to the wise rule

that the title of a statute and the heading of a section cannot

limit the plain meaning of the text. United States v. Fisher,

2 Cranch 358, 386; Cornell v. Coyne, 192 U.S. 418, 430:

Strathearn S.S.Co. v. Dillon, 252 U.S. 348, 354. For

interpretative purposes, they are of use only when they

shed light on some ambiguous word or phrase. They are

but tools available for the resolution of a doubt. But they

cannot undo or limit that which the text makes plain.

Brotherhood of Railroad Trainmen v. Baltimore & Ohio R.R., 331

U.S. 519, 528-29 (1947). See also United States v. Roemer, 514 F.2d

1377, 1380 (2d Cir. 1975) (‘‘[B]Jasic principle of statutory construction

... gives precedence, in the event of irreconcilable conflict, to words

in the body of a provision over those in a caption.”’).

38a

apply only in the demarcated territory. Otherwise Connecticut

claims, the existence of a boundary line would be meaningless.

The answer to this is obvious. Some sections of the Act ex-

pressly proscribed certain activities in “*Indian country.”* For

those sections, a definitive boundary line was important. Other

sections, not limited to Indian country by their terms, need not

be given limited geographical applicability in order to ascribe

meaning to the boundary line. It is no more persuasive to say

that the mere existence of a boundary line in a statute means

that all of the provisions of that statute are applicable only

within the boundary, than it is to say that Congress’ failure

explicitly to limit the provisions of the entire Act to Indian

country proves the contrary.

Finally, defendant argues that ‘“boundary line’’ language

found in the 1796-1802 Act suggests that the entire Act was to

be limited to Indian country. Defendant emphasizes the follow-

ing closing proviso:

‘*(I]f the boundary line between the said Indian tribes

and the United Sttes shall at any time hereafter. be

varied, by any treaty... then all the provisions

contained in this act shall be construed so as to apply

to the said line so to be varied... .''5

Defendant would have the court ignore, however, the language

obscured in the final ellipsis. The statute continues:

**.,.. inthe same manner, as said provisions apply, by

force of this act, to the boundary line hereinbefore.”

In other words, where the boundary line as described inthe Act

is applicable to a particular provision, an amended boundary

will also apply. If it suggests anything, however, the language

'S1802 Act, § 1: 1799 Act, § 1: 1796 Act, § 1 (emphasis added).

Bo »

39a

tends to suggest that the **manner’’ in which the boundary line

applies to various provisions may not be uniform section-to-

section throughout the Act.

In short, the language of the Act — both that of the particu-

lar land conveyance section and that of the Act as a whole —

does not support the defendant's position. On their face, the

Trade and Intercourse Acts and the Nonintercouse statutes

clearly apply everywhere ‘within the bounds of the United

States,’’ in Indian country and elsewhere.

Legislative History and Historical Context

Because of the apparent clarity of the statutory language,

plaintiff argues that reference to legislative history is inapprop-

riate. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 201 (1976). As

the Supreme Court has noted, however, ** ‘[w]hen aid to con-

struction of the meaning of words, as used in the statute, is

available, there certainly can be no ‘‘rule of law’’ which forbids

its use, however clear the words may appear on “‘superficial

examination.’ * ** Train v. Colorado Public Interest Research

Group, 426 U.S. 1, 10 (1976), quoting United States v. Ameri-

can Trucking Ass'n., 310 U.S. 534, 543-44 (1940) (footnotes

omitted). Ultimately, the objective of the court in construing a

particular statute is to ‘‘ascertain the congressional intent and

give effect to the legislative will,’ Philbrook v. Glodgett, 421

U.S.707, 713 (1975), and while legislative intent is best gleaned

from the text of the statute itself, AFL-C/JO v. Marshall, 570

F.2d 1030, 1036 (D.C. Cir. 1978): Patagonia Corp. v. Board of

Governors of Federal Reserve System, 517 F.2d 803, 813 (9th

Cir. 1975), the court should not be loathe to probe beneath the

surface in its search for underlying intént.

Consequently, this Court has gone beyond the language of

the statute and has carefully examined the historical arguments

advanced by the defendant. These arguments have been elab-

orately presented in meticulous briefs with extensive appen-

40a

dices and center on three general themes.'® First, the defendant

presents evidence which it claims shows that the Noninter-

course statutes were enacted merely as a continuation of the

limited Indian act passed under the Articles of Confederation.

Second, the defendant argues that the Acts were enacted solely

to secure treaty rights and to preserve peace in the frontier: and

finally, the defendant points to an extensive compilation of

jurisdictional history which suggests that the executive branch

of the government, throughout the 19th century, treated the

Trade and Intercourse Acts as applicable solely to Indian coun-

try.

'6In addition to arguments based on a more generalized history of

Indian relations, the defendant has unearthed one fragment of

‘legislative history,’’ as that term is generally used. In a report

accompanying three bills, one of which dealt with the enactment of

the 1834 Trade and Intercourse Act, the Committee of Indian Affairs

of the House of Represeniatives stated that:

‘This bill is intended to apply to the whole Indian country

; it will continue to embrace only those sections of

country not within any State... .

H.R. Rep. No. 474, 23d Cong.. Ist Sess. 10 (1834).

While this quote has some probative value, its importance was

minimized when, after the report was issued, an amendment offered

by Senator Frelinghuysen was adopted on the floor of the Senate.

Frelinghuysen, a bitter opponent of President Jackson’s policy of

removing Indian tribes to the west of the Mississippi, was able to

insert a protective proviso in the 1834 Act. The proviso declared that

the repeal of the 1802 Act by the 1934 enactment could not

‘impair or affect the intercourse act of eighteen hundred

and two, so far as the same relates to or concerns Indian

tribes residing east of the Mississippi.”’

1834 Act, § 29.

Apart from the quote discussed above, legislative history on the

precise question before the court is not helpful. As the State of Maine,

amicus curiae, has indicated:

‘‘Congressional debates and committee reports on the

territorial applicability of the Acts are, admittedly,

scanty.”

4la

Both parties appear to concede that the Continental Con-

gress, which operated under the Articles of Confederation,

enacted a proclamation governing relations with Indians which

explicitly left to the States the right to govern Indian affairs

within their boundaries.'’ In fact, the Continental Congress

had no other choice, for the Articles of Confederation confer-

red no greater powers on it.'® Both parties also agree that the

Constitution, as it finally became effective in 1789, greatly

expanded the powers of the government to deal with Indians.'°

The dispute between the parties arises over the extent to which

Congress chose to exercise its new-found powers. Defendant

argues that since the post-Constitution Congress was faced

with the same problems and was composed of many of the same

individuals as the Continental Congress, it only intended to

exercise its powers to the same extent as they previously had

been exercised. This, however, is hardly an automatic conclu-

sion. A legislature constrained by an exceedingly weak grant of

authority will not necessarily exhibit a similar degree of self-

restraint when the external constraints are removed.?° Nor is

there sucha similarity of language between the proclamation of

the Continental Congress and the 1790 Act as would make the

'7] Laws U.S. 607-608.

'SArticles of Confederation, Article IX.

'9U.S. Const., art. I, § 8, cl. 3 provides:

‘*The Congress shall have Power To . . . regulate Com-

merce with foreign Nations, and among the several States,

and with the Indian tribes... .”’

20In fact, several contemporaries suggested the contrary. When

George Washington spoke to the Seneca tribe of New York Indians in

1790 he stressed to them that the United States Constitution and

subsequent acts of Congress represented a significant change from

the previous situation.

‘*I must inform you that these evils arose before the pre-

sent Government of the United States was established,

when the separate States, and individuals under their au-

thority, undertook to treat with the Indian tribes respect-

ing the sale of their lands. But the case is now entirely

42a

defendant’s construction appear likely. The proclamation

applied “without the limits or jurisdiction of any particular

State,’ while the Nonintercourse statute of 1790 was expressly

made applicable ‘‘within the United States.’’ As the Court of

Appeals for the First Circuit has noted in a slightly different

context:

‘(W]e find an inclusive reading consonant with the

policy and purpose of the Act. That policy has been

said to be to protect the Indian tribes’ right of occu-

pancy, even when that right is unrecognized by any

treaty, United States v. Santa Fe Pacific R. Co., 314

U.S. 339, 345, 347, 62 S.Ct. 248, 86 L.Ed. 260 (1941),

rehearing denied, 314 U.S. 716, 62 S.Ct. 476, 86

L.Ed. 570 (1942), and the purpose to prevent the

unfair, improvident, or improper disposition of In-

dian lands, Federal Power Commission v. Tuscarora

Indian Nation, 362 U.S. 99, 119, 80 S.Ct. 543, 4

L.Ed.2d 584, rehearing denied, 362 U.S. 956, 80

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.’

4 American State Papers 142 (1 Indian Affairs, 1832) (emphasis

added).

Chief Justice Marshall put it more directly in his opinion for the Court

in Worcester v. Georgia, 31U.S. (6 Pet.) 515, 559 (1832):

‘The correct exposition of this article [in the Articles of

Confederaton] is rendered unnecessary by the adoption of

our existing constitution. That instrument confers on con-

gress the powers of war and peace; of making treaties, and

of regulating commerce with foreign nations, and among

the several states, and with the Indian tribes. These

powers comprehend all that is required for the regulation

of our intercourse with the Indians. They are not limited

by any restrictions on their free actions; the shackles

imposed on this power, in the confederation, are

discarded.”

43a

S.Ct. 858, 4 L.Ed.2d 873 (1960); United States v.

Candelaria, 271 U.S. 432, 441, 46S8.Ct. 561, 70 L.Ed.

1023 (1926). Since Indian lands have, historically,

been of great concern to Congress, see Oneida In-

dian Nation v. County of Oneida, 414 U.S. 661, 667,

94 S.Ct. 772, 39 L.Ed.2d 73 (1974), we have no diffi-

culty in concluding that Congress intended to ecxei-

cise its power fully.”

Joint Tribal Council of the Passamaquoddy Tribe v. Morton,

528 F.2d 370, 377 (Ist Cir. 1975).

Connecticut has also collected a vast array of historical

writings and records which demonstrate that George

Washington and Henry Knox, two of the primary architects of

the Trade and Intercourse Acts, were principally concerned

with placating the frontier Indians and minimizing friction on

our young nation’s western borders. This, of course, is undeni-

able, and the plaintiff does not contend otherwise. This court,

however, finds it worthy of some note ‘that in spite of the

extensive research efforts by the defendant and the State of

Maine, as amicus, neither have been able to unearth any writ-

ings which establish that peace on the frontier and the mainte-

nance of treaty obligations were the sole objectives of the

legislation. But no other reasons are given to speculate.

It is particularly difficult to understand why there is no

language from the sponsors of the Act designed to reassure

individual states that their prerogatives in Indian affairs were

not being changed, when the Act, on its face, appeared to

sweep So broadly. The historical backdrop for the enactment of

these Acts is dominated by conflicts between those who fa-

vored a strong central government and those who favored

maintaining maximum state autonomy. Certainly, passage of

the Acts would have been expedited had George Washington or

other advocates of the measures been able to minimize the

44a

extent of “‘states-rights’’ opposition. Nonetheless, no such

language has been brought to the court's attention.

Nor is it inconceivable that Washington's plan to preserve

peace on the frontiers included concessions to Eastern Indians

as some evidence of the United States’ sincerity of purpose. As

early as 1790, George Washington was addressing frontier

tribes in an effort to convince them that the national approach

to Indian affairs had changed.?' Statutes which demonstrated a

genuine intent to end the evils associated with encroachment

on Indian land wherever situated would be substantial evi-

dence of such a change.

Thus, while the history as presented by the defendant may

have some probative value, it is not without ambiguity. The

court is mindful of the principle that statutes are generally to be

construed in light of the mischief to be remedied, Liberation

News Service v. Eastland, 426 F.2d 1379, 1383 (2d Cir. 1970),

but such an admonition is difficult to follow where the specific

‘**mischief™’ is difficult to identify.

Finally, Connecticut and the State of Maine. as amicus.

have developed an extensive argument based on “‘jurisdic-

tional history.’’ Jurisdictional history is a tool which is some-

times used to establish the meaning of a statute by determining

which entities assert jurisdiction after a statute is enacted.

While a history of such interaction is significant and lends some

credence to the defendant's motion, extensive reliance on

jurisdictional history under the circumstances in this case is

inappropriate. Here, instead of a dispute where daily behavior

can be said to have established a general understanding, this

case involves a handful of land “‘sales’’ concluded over a

hundred years ago. Neither the federal government's failure to

214 American State Papers 142 (1 Indian Affairs, 1832) (Speech io

Seneca Indians of New York).

‘

4Sa

intervene and declare the sales void for the efforts of Connec-

ticut to extinguish Indian title without federal approval in the

late 18th or early 19th centuries can be said to have established

the meaning of 25 U.S.C. § 177 and its predecessors.

In fact. one court recently faced with a claim under 25

L.S.C.§ 177, aclaim which was far more conducive to proof by

jurisdictional history than is the claim in this case,?? found that

even virtually uninterrupted exercise of state jurisdiction could

not alter the federal government's role as envisioned in the

statute. In Joint Tribal Council of Passamaquoddy Tribe v.

Morton. supra, the State of Maine placed before the First

Circuit virtually the identical arguments it raises here as amicus

in an effort to convince that court that the statute did not

provide for a federal trust relationship with the Pas-

samaquoddy Indian tribe. In spite of the fact that all of the

jurisdictional history was to the contrary, the First Circuit

concluded that the federal government's fiduciary status with

respect to the protection of Indian lands was established

“beyond question... . from the history, wording and structure

of (25 U.S.C.$ 177]... .° 528 F.2d at 379. It noted further that

‘*(t}he reasons behind Congress’ inaction are too problematical

for the matter to have meaning for purposes of statutory con-

struction. Id. at 378.

Thus. while the defendant's historical arguments may cast

seme doubt on the meaning of the statute, they, at best, add a

*21n Joint Tribal Council of Pasamaquoddy Tribe v. Morton, 528 F.2d

370 (ist Cir. 1975). the issue was whether the United States had

a’ ‘trust relationship with the Passamaquoddy Indian tribe. The tribe

clamed that the Nonintercourse statute created a fiduciary relation-

ship. Unlike a handfull of land sales. a trust ‘relationship’ necessar-

ily implies repeated and numerous contacts between the guardian and

its ward. and would therefore appear to be more amenable to proof by

jurisdictional history than is the claim advanced by the defendants

here.

46a

shade of ambiguity to an otherwise relatively unambiguous

statute. As one court has noted: “‘the plainer the language, the

more convincing contrary legislative history must be.”’ United

States v. United States Steel Corp., 482 F.2d 439, 444 (7th

Cir.), cert. denied, 414 U.S. 909 (1973). When considered in

light of the Supreme Court's admonition that “*statutes passed

for the benefit of dependent Indian tribes . . . are to be liberally

construed, doubtful constructions being resolved in favor of

the Indians.’ Wilson v. Omaha Indian Tribe, 47 U.S.L.W.

4758, 4761 (U.S. June 20, 1979), it is clear that the defendant

has failed to carry its burden of establishing a contrary legisla-

tive history sufficient to overcome the apparent meaning of the

Statute, discernable from the language of the Act alone.

Case Law

Both parties insist that the relevant case law on this issue

substantiates their claims, and both set forth exhaustive dis-

cussions of early 19th century cases as well as opinions

rendered in the last decade. In spite of extensive searches by

both parties, however, there is apparently no reported opinion

which specifically rules on the geographic applicability of the

land transfer section of the Trade and Intercourse Act. In other

words, this precise issue appears to be a question of first

impression.

?3Several other courts have come very close to deciding tiits issue. In

Oneida Indian Nation v. County of Oneida, 434 F. Sup. 527. 540

(N.D.N.Y. 1977), on remand from 414 U.S. 661 (1974), Judge Port

noted that the Nonintercourse statute applied in New York in spite of

the facts that New York was one of the original 13 states. That case

does not necessarily resolve the issue here since the Oneida Indian

Nation had the benefit of a federal treaty and may have been located

to the west of the “‘Indian country’’ boundary lines during the early

1790's.

In Narragansett Tribe v. Southern Rhode Island Land Development

Corp., supra at 803, 804, Chief Judge Pettine appears implicitly to

have resolved the question in favor of the Indians. although it is not

clear that the issue was directly presented by the parties.

47a

While the early Supreme Court cases are of some assis-

tance in resolving this particular question, they are difficult to

decipher and even more difficult to apply. Most do not even

discuss the Nonintercourse statutes and focus instead on con-

Sstitutional and jurisprudential concepts. Moreover, the florid

style of the early opinions converts many of them into

*litigant[s’] wishing-well[s] into which, it sometimes seems,

one may peer and find nearly anything he wishes.’ Berkey

Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 273 (2d Cir.

1979).

Fortunately, however, this court need not wade through

the dense prose of this country’s earliest jurists, for this task

has already been done by Justice White in his opinion for the

Court in Oneida Indian Nation v. County of Oneida, 414 U.S.

661, 666-78 (1974). There, after an extensive review of prior

case law, the Court concluded:

‘It very early became accepted doctrine in this Court

that although fee title to the lands occupied by In-

dians when the colonists arrived became vested in

the sovereign — first the discovering European na-

tion and later the original States and the United

States — aright of occupancy in the Indian tribes was

nevertheless recognized. That right, sometimes

called Indian title and good against all but the

sovereign, could be terminated only by sovereign

act. Once the United States was organized and the

Constitution adopted, these tribal rights to Indian

lands became the exclusive province of the federal

law. Indian title, recognized to be only a right of

occupancy, was extinguishable only by the United

States. The Federal Government took early steps to

deal with the Indians through treaty, the principal

purpose often being to recognize and guarantee the

rights of Indians to specified areas of land. This the

United States did with respect to the various New

48a

York Indian tribes, including the Oneidas. The

United States also asserted the primacy of federal

law in the first Nonintercourse Act passed in 1790, |

Stat. 137, 138, which provided that ‘no sale of lands

made by any Indians .. . within the United States,

shall be valid to any person... orto any state...

unless the same shall be made and duly executed at

some public treaty, held under the authority of the

United States.’ This has remained the policy of the

United States to this day. See 25 U.S.C. § 177.

“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, includ-

ing 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 preemptive right to purchase

from the Indians, was in the State, Fletcher. Peck, 6

Cranch 87 (1810). But this reality did not alter the

doctrine that federal law, treaties, and statutes pro-

tected Indian occupancy and that its termination was

exclusively the province of federal law.”

Id. at 667, 668, 670 (footnotes omitted) (emphasis added).

It is true that the precise issue raised here was not before

the Court in Oneida. There, the Oneida Indian Nation had filed

a suit in federal court claiming a right to possession of lands and

had based its claim, as do the Indians here, on 25 U.S.C. § 177.

The defendants in Oneida moved to dismiss the action on the

grounds that the court lacked federal question jurisdiction.

Under the ‘‘well-pleaded complaint’’ doctrine the test which

the Supreme Court applied was whether the Indians’ claim was

49a

not ‘‘so insubstantial, implausible, foreclosed by prior

decisions of this Court, or otherwise completely devoid of

merit as not to involve a federal controversy within the

jurisdiction of the District Court... .’’ /d. at 666. In resolving

this question the Court concluded:

‘given the nature and source of the possessory rights

of Indian tribes to their aboriginal lands, particularly

when confirmed by treaty, it is plain that the com-

plaint asserted a controversy arising under the Con-

stitution, laws, or treaties of the United States within

the meaning of both § 1331 and § 1362.”

Id. at 667 (emphasis added). Thus, where the Supreme Court

apparently needed only to conclude that the Indians asserted a

colorable claim, its discussion went further and virtually set-

tled the question of the geographical applicability of 25 U.S.C.

§ 177.

To this extent, the Supreme Court language may be consi-

dered dictum, as the defendant suggests, since its reach was

further than required under the circumstances. Nonetheless, it

was necessary for the Court at least to consider the Indians’

claim, the territorial applicability of 25 U.S.C. § 177, and the

question whether section 177 applied outside of Indian coun-

try. The latter question was explicitly put in issue by the brief

and argument of one of the litigants before the Court. At worst,

then, the explicit discussion of the Supreme Court in Oneida is

reasoned dictum. Contrary to Connecticut's argument, the

mere fact that the language might be considered dictum does

not permit this court to ‘‘cavalierly disregard it... . While such

dictum is not binding upon [the court], it must be given

considerable weight and can not be ignored in the resolution of

the close question [this court has] to decide.”’ United States v.

Bell, 524 F.2d 202, 206 (2d Cir. 1975); see Warren v. Harvey,

472 F. Supp. 1061, 1072 (D.C. Conn. 1979). Since the Oneida

Opinion reaches the same conclusion that this court has

50a

reached after considering the language and the history of the

Act, the Oneida Court’s analysis and conclusions based on

prior case law provide substantial additional support for the

plaintiff's position, if indeed, they are not controlling.*4

Defendant argues that a very recent Supreme Court deci-

sion undercuts the force of the language in Oneida. In the case

of Wilson v. Omaha Indian Tribe, supra, the Court, again by

Justice White, reasoned that section 22 of the 1834 Trade and

Intercourse Act was intended to apply solely in Indian country.

Defendant argues that this is entitled to significance here be-

cause section 22, like the section on land conveyances, con-

tains no express geographical limitations. Thus, the defendant

argues, the Supreme Court has impliedly held that all sections

of the Trade and Intercourse Acts are similarly limited.

While there may be some merit to the argument, this court

does not attribute much significance to it. Section 22 deals only

with a procedural rule which places the burden of proof on a

‘‘white person” in any civil dispute with an Indian over prop-

erty. The precise question before the Supreme Court was

whether the State of lowa was a “‘white person”’ under the

statute. In reaching the conclusion that lowa was not a ‘‘ white

person,’ the Court did not have to rule that the Act applied

only in Indian country. Unlike Oneida, the Court did not con-

sider prior case law nor did it elaborate on this point. Through-

out the opinion, Oneida is cited favorably with no hint that it

was being overruled sub silentio.

24On remand from the Supreme Court's decision in Oneida, supra,

Judge Port concluded that the Supreme Court's language established

the geographic applicability of 25 U.S.C. § 177. In other words, the

Supreme Court's treatment of this question was not considered solely

as dicta, but rather was treated as binding on the District Court.

Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527, 540

(N.D.N.Y. 1977).

Sla

Furthermore, there is a noteworthy distinction between

section 22 and the Nonintercourse section at issue here.

Section 22, unlike most of the sections of the Trade and

Intercourse Act, was first added to the Act as late as 1822

Unlike the land conveyance section, it is not based on prior

provisions dating back to 1790, shortly after the ratification of

the Constitution. In particular, unlike the land conveyance

section, section 22 was not based on a history of prior

enactments, each of which expressly indicated that the section

was applicable throughout the United States.?°

Therefore, for the reasons stated above, this court

concludes that Wilson v. Omaha Indian Tribe has not altered

the import of the Supreme Court’s clear expression in Oneida.

Oneida, with its summary of prior case law, stands as strong

support for the plaintiff's position.

Conclusion

‘*For purposes of this motion [the court] may look only at

the pleadings, with all of the ‘well-pieaded material facts al-

leged in the complaint . . . taken as admitted’ . . ., and the

25Justice White himself was unwilling to extend the interpretation of

the words “white person”’ in section 22 to any other section of the

Act, in spite of the urging of two concurring members of the Court.

The Court refused to do so because the other provision in the Act

which used the words *‘white person,”’ section 16, had a different and

‘distinct legislative history.’’ Wilson v. Omaha Indian Tribe, supra,

at 4761 n.16. Section 16, like the land conveyance section and unlike

section 22, had predecessor provisions in every Act since 1790.

Because the history of section 16 parallels that of the land transfer

section at issue here, the Court's refusal to extend its ruling to section

16 based on a ‘distinct legislative history’’ is some evidence that the

Wilson dictum should not be extended to other provisions of the Act.

52a

complaint should not be dismissed ‘unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” “’ George C. Frey

Ready-Mixed Concrete, Inc. v. Pine Hill Concrete Mix Corp..,

554 F.2d 551, 553 (2d Cir. 1977) (citations omitted). Since the

Nonintercourse statute is applicable to the lands at issue here,

it is clear that the complaint of the Mohegan Tribe does state a

claim upon which relief may be granted. Therefore, the defen-

dant’s motion is denied.

SO ORDERED.

Dated at Hartford, Connecticut, this 17th day of January,

1980.

M. JOSEPH BILUMENFELD

United States District Judge

S3a

APPENDIX C

Act of 1790, ch. 33, 1 Stat. 137

SECTION |. That no person should be permitted to carry

on any trade or intercourse with the Indian tribes, without a

license for that purpose, under thehandand seal of the superin-

tendent of the department, or of such other person as the

President of the United States shall appoint for that purpose;

which superintendent, or other person so appointed, shall, on

application, issue such license to any proper person, who shali

enter into bond, with one or more sureties, approved of by the

superintendent, or person issuing such licensing, or by the

President of the United States, in the penal sum of one

thousand dollars, payable to the President of the United States

_ for the time being, for the use of the United States, conditioned

for the true and faithful observance of such rules, regulations,

and restrictions, as now are, or hereafter shall be, made for the

government of trade and intercourse with the Indian tribes. The

said superintendents, and persons by them licensed as

aforesaid, shall be governed in all things, touching the said

trade and intercourse, by such rules and regulations as the

President shall prescribe. And no other person shall be permit-

ted to carry on any trade or intercourse with the Indians,

without such license as aforesaid. No license shall be granted

for a longer term than two years: Provided, nevertheless, That

the President may make such order respecting the tribes sur-

rounded in their settlements by the citizens of the United

States, as to secure an intercourse without license, if he may

deem it proper.

SECTION 2. That the superintendent, or person issuing

such license, shall have full power and authority to recall all

such licenses as he may have issued, if the person so licensed

shall transgress any of the regulations or restrictions provided

for the government of trade and intercourse with the Indian

tribes, and shall put in suit such bonds as he may have taken,

54a

immediately on the breach of any condition in said bond: Pro-

vided always, That if it shall appear, on trial, that the person

from whom such license shall have been recalled, has not

offended against any of the provisions of this act, or the regula-

tions prescribed for the trade and intercourse with the Indian

tribes, he shall be entitled to receive a new license.

SECTION 3. That every person who shall attempt to trade

with the Indian tribes, or be found in the Indian country with

such merchandise in his possession as are usually vended to the

Indians, without a license first had and obtained, as in this act

prescribed, and being thereof convicted in any court proper to

try the same, shall forfeit all the merchandise so offered for sale

to the Indian tribes, or so found in the Indian country, which

forfeiture shall be one half to the benefit of the person prosecut-

ing, and the other half to the benefit of the United States.

Act of 1790, ch. 33, 1 Stat. 137 § 4.

SECTION 4. And be it enacted and declared, That no sale

of lands made by any Indians, or any nation or tribe of Indians

within the United States, shall be valid to any person or per-

sons, orto any state, whether having the right of pre-emption to

such lands or not, unless the same shall be made and duly

executed at some public treaty, held under the authority of the

United States.

SECTION 5S. That if any citizen or inhabitant of the United

States, or of either of the territorial districts of the United

States, shall go into any town, settlement, or territory, belong-

ing to any nation or tribe of Indians, and shall there commit any

crime upon, or trespass against, the person or property of any

peaceable and friendly Indian or Indians, which, if committed

within the jurisdiction of any State, or within the jurisdiction of

either of the said districts, against a citizen or white inhabitant

thereof, would be punishable by the laws of such State or

district, such offender or offenders shall be subject to the same

5Sa

punishment, and shall be proceeded against in the same man-

ner, as if the offence had been committed within the jurisdiction

of the State or district to which he or they may belong, against a

citizen or white inhabitant thereof.

SECTION 6. That for any of the crimes or offences

aforesaid, the like proceedings shall be had for apprehending,

imprisoning, or bailing, the offender, as the case may be, and

for recognizing the witnesses for their appearance to testify in

the case, and where the offender shall be committed, or the

witnesses shall be in a district other than that in which the

offence is to be tried, for the removal of the offender and the

witnesses, or either of them, as the case may be, to the district

in which the trial is to be had, as by the act to establish the

judicial courts of the United States, are directed for any crimes

or offences against the United States.

SECTION 7. That this act shall be in force for the term of

two years, and from thence to the end of the next session of

Congress, and no longer.

Act of 1793, ch. 19, 1 Stat. 329

SECTION |. That no person shall be permitted to carry on

any trade or intercourse with the Indian tribes without a license

under the hand and seal of the Superintendent of the Depart-

ment, or of such other person as the President of the United

States shall authorize to grant licenses for that purpose; which

Superintendent, or person so authorized, shall, on application,

issue such license, for a term not exceeding two years, to any

proper person, who shall enter into bond, with one or more

sureties, approved of by the Superintendent, or person issuing

such license, or by the President of the United States, in the

panel sum of one thousand dollars, payable to the United

States, conditioned for the true and faithful observance of such

rules, regulations, and restrictions, as are or shall be made, for

the government of trade and intercourse with the Indian tribes.

S6a

The said Superintendents, and persons licensed, as aforesaid,

shall be governed, in all things touching the said trade and

intercourse, by such rules and regulations as the President of

the United States shall prescribe.

SECTION 2. That the Superintendent, or person issuing

such license, shall have full power and authority to recall the

same, if the person so licensed shall transgress any of the

regulations or restrictions provided for the government of trade

and intercourse with the Indian tribes; and shall put in suit such

bonds as he may have taken, on the breach of any condition

therein contained. ,

SECTION 3. That every person who shall attempt to trade

with the Indian tribes, or shall be found in the Indian country,

with such merchandise in his possession as are usually vended

to the Indians, without lawful license, shall forfeit all the mer-

chandise offered for sale to the Indians, or found in his posses-

sion in the Indian country, and shall, moreover, be liable to a

fine, not exceeding one hundred dollars, and to imprisonments

not exceeding thirty days, at the discretion of the Court in

which the trial should be: Provided, That any citizen of the

United States, merely traveling through any Indian town or

territory, shall be at liberty to purchase, by exchange or other-

wise, such articles as may be necessary for his subsistence,

without incurring any penalty.

SECTION 4. That, if any citizen or inhabitant of the Un-

ited States, or of either of the Territorial districts of the United

States, shall go into any town, settlement, or territory, belong-

ing to any nation or tribe of Indians, and shall there commit

murder, robbery, larceny, trespass, or other crime, against the

person or property of any friendly Indian or Indians, which, if

committed within the jurisdiction of any State, or within the

jurisdiction of either of the said districts, against a citizen

thereof, would be punishable by the laws of such State or

district, such offender shall be subject to the same punishment,

S7a

as if the offence had been committed within the State or district

to which he or she may belong, against a citizen thereof.

SECTION 5. That, if any such citizen or inhabitant shall make

a settlement of lands belonging to any Indian tribe, or shall

survey such lands, or designate their boundaries, by marking

trees, or otherwise, for the purpose of settlement, he shall

forfeit a sum, not exceeding one thousand dollars norless than

one hundred dollars, and suffer imprisonment, not exceeding

twelve months, in the discretion of the Court before whom the

trial shall be: and it shall, moreover, be lawful for the President

of the United States to take such measures as he may judge

necessary, to remove from lands belonging to any Indian tribe,

any citizens or inhabitants of the United States, who have

made, or shall hereafter make, or attempt to make, a settlement

thereon.

SECTION 6. That no person shall be permitted to pur-

chase any horse of an Indian, or of any white man in the Indian

territory, without special license for that purpose: which

license the Superintendent, or such other person as the Presi-

dent shall appoint, is hereby authorized to grant, on the same

terms, conditions and restrictions, as other licenses are to be

granted under this act: Provided, also, That every person who

shall purchase a horse or horses, under such license, before he

exposes such horse or horses for sale, and within fifteen days

after they shall have been brought out of the Indian country,

shall make a particular return to the Superintendeut, or other

person from whom he obtained his license, of every horse by

him purchased, as aforesaid, describing such horses by their

color, height, and other natural or artificial marks, under the

penalties contained in their respective bonds. And every per-

son purchasing a horse or horses, as aforesaid, in the Indian

country, without a special license, shall, for every horse thus

purchased and brought into any settlement of citizens of the

United States, forfeit, for every horse thus purchased, or

brought from the Indian country, a sum not more than one

S8a

hundred dollars, nor less than thirty dollars, to be recovered in

any Court of Record having competent jurisdiction. And every

person who shall purchase a horse, knowing him to be brought

out of the Indian territory by any person or persons not

licensed, as above, to purchase the same, shall forfeit the value

of such horse: one-half for the benefit of the informant, the

other half for the use of the United States, to be recovered as

aforesaid.

SECTION 7. That no agent, superintendent, or other per-

son, authorized to grant a license to trade, or purchase horses,

shall have any interest or concern in any trade with the Indians,

or in the purchase or sale of any horses, to or from any Indian:

and that any person offending herein, shall forfeit one thousand

dollars, and be imprisoned, at the discretion of the Court,

before which the conviction shall be had, not exceeding twelve

months.

Act of 1793, ch. 19, 1 Stat. 329

SECTION 8. And be it further enacted, That no purchase

or grant of lands, or of any title or claim thereto, from any

indians or nation or tribe of Indians, within the bounds of the

United States, shall be of any validity in law or equity. unless

the same be made by a treaty or convention entered into pur-

suant to the constitution; and it shall be a misdemeanor, in any

person not employed under the authority of the United States.

in negotiating such treaty or convention, punishable by fine not

exceeding one thousand dollars, and imprisonment not exceed-

ing twelve months, directly or indirectly to treat with any such

Indians, nation or tribe of Indians, for the title or purchase of

any lands by them held, or claimed: Provided nevertheless,

That it shall be lawful for the agent or agents of any state, who

may be present at any treaty, held with Indians under the

authority of the United States, in the presence, and with the

approbation of the commissioner or commissioners of the Un-

ited States, appointed to hold the same, to propose to, and

59a

adjust with the Indians, the compensation to be made for their

claims to lands within such state, which shall be extinguished

by the treaty.

SECTION 9. That, in order to promote civilization among

the friendly Indian tribes, and to secure the continuance of their

friendship, it shall and may be lawful for the President of the

United States to cause them to be furnished with useful domes-

tic animals and implements of husbandry, and also to furnish

them with goods or money, in such proportions as he shall

judge proper, and to appoint such persons, from time to time,

as temporary agents, to reside among the Indians, as he shall

think proper: Provided, That the whole amount of such pre-

sents, and allowance to such agents, shall not exceed twenty

thousand dollars per annum.

SECTION 10. That the Superior Courts of each of the said

Territorial districts, and the Circuit Courts, and other Courts of

the United States, of similar jurisdiction in criminal causes, in

each district of the United States, into which any offender

against this act shall be first brought, or in which he shall be

apprehended, shall have, and are hereby invested with, full

power and authority, to hear and determine all crimes, of-

fences, and misdemeanors, against this act; such Courts pro-

ceeding therein in the same manner as if such crimes, offences

and misdemzanors, has been committed within the bounds of

their respective districts: and in all cases where the punishment

shall not be death, the County Courts of Quarter Sessions in the

said Territcrial districts, and the District Courts of the United

States in their respective districts, shall have, and are hereby

invested with, like power to hear and determine the same.

SECTION 11. That it shall and may be lawful for the

President of the United States, and for the Governors of such

Territorial districts, respectively, on proof to them made, that

any citizen or citizens of the United States, or of the said

districts, or either of them, have been guilty of any of the said

i,

60a

crimes, offences, or misdemeanors, within any town, settle-

ment, or territory, belonging to any nation or tribe of Indians,

to cause such person or persons to be apprehended, and

brought into either of the United States, or of the said districts,

and to be proceeded against in due course of law. And in all

cases where the punishment shall be death, it shall be lawful for

the Governor of the district into which the offender may be first

brought, or in which he may be apprehended, to issue a com-

mission of Oyer and Terminer to the Superior Judges of the

district, who shall have full power and authority to hear and

determine all such capital cases, in the same manner as the

Superior Courts of such districts have, in their ordinary ses-

sions. And when the offender shall be brought into, or shall be

‘apprehended in, any of the United States, except Kentucky, it

shall be lawful for the President of the United States to issue a

like commission to any two Judges of the Supreme Court of the

United States and the Judge of the district, in which the offen-

der may have been apprehended or first brought; which Judges,

or any two of them, shall have the same jurisdiction, in such

capital cases, as the Circuit Court of such district, and shall

proceed to trial and judgment, in the same manner as such

Circuit Court might or could do.

SECTION 12. That all fines and forfeitures, which shall

accrue under this act, shall be, one-half to the use of the

informant, and the other half to the use of the United States,

except where the prosecution shall be first instituted on behalf

of the United States, in which case the whole shall be to their

use.

SECTION 13. And be it further enacted, That nothing in

this act shall be construed to prevent any trade or intercourse

with Indians living on lands surrounded by settlements of the

citizens of the United States, and being within the jurisdiction

of any of the individual states.

6la

SECTION 14. That all and every other act and acts, com-

ing within the purview of this act, shall be, and are hereby,

repealed.

SECTION 15. That this act shall be in force for the term of

two years, and from thence to the end of the then next session

of Congress, and no longer.

Act of 1796, ch. 30, 1 Stat. 469

SECTION 1. Be it enacted by the Senate and House of

Representatives of the United States of America in Congress

assembled, That the following boundary line, established by

treaty between the United States and various Indian tribes,

shall be clearly ascertained, and distinctly marked, in all such

places, as the President of the United States shall deem neces-

Sary, and in such manner as he shall direct, to wit: Beginning at

the mouth of Cayahoga river on Lake Erie, and running thence

up the same, to the portage between that end and the Tus-

caroras branch of the Muskingum; thence down that branch, to

the crossing place above Fort Lawrence: thence westerly toa

fork of that branch of the Great Miami river, running into the

Ohio, at, or near which fork, stood Laromie’s store, and where

commences that portage, between the Miami of the Ohio, and

Saint Mary’s river, which is a branch of the Miami, which runs

into Lake Erie; thence a westerly course to Fort Recovery,

which stands on a branch of the Wabash; thence southwes-

terly, in a direct line to the Ohio, so as to intersect that river,

opposite the mouth of Kentucky or Cuttawa river; thence down

the said river Ohio, to the tract of one hundred and fifty

thousand acres, near the rapids of the Ohio, which has been

assigned to General Clark, for the use of himself and his war-

riors; thence around the said tract, on the line of said tract, till it

shall again intersect the said river Ohio; thence down the same,

to a point opposite the high lands or ridge between the mouth of

the Cumberland and Tennessee rivers; thence easterly on the

said right, to a point, from whence, a southwest line will strike

62a

the mouth of Duck river: thence still easterly on the said ridge,

to a point forty miles above Nashville: thence northwest, to

Cumberland river; thence up the said river to where Kentucky

road crosses the same; thence to the top of Cumberland moun-

tain; thence along Campbell’s line, to the river Clinch; thence

down the said river, to a point from which a line shall pass the

Holsten, at the ridge, which devides the waters running into

Little River, from those running into the Tennessee; thence

south, to the North Carolina boundary; thence along the South

Carolina Indian boundary, to and over the Ocunna mountain,

in a southwest course, to Tugelo river; thence in a direct line, to

the top of the Currahee mountain, where the Creek line passes

it; thence to the head or source of the main south branch of the

Oconee river, called the Appalachee; thence down the middle

of the said main south branch and river Oconee, to its conflu-

ence with Oakmulgee, which forms the river Altamaha; thence

down the middle of the said Altamaha, to the old line on the said

river; and thence along the said old line to the river Saint

Mary’s; Provided always, that if the boundary line between the

said Indian tribes and the United States, shall, at any time

hereafter, be varied, by any treaty which shall be made be-

tween the said Indian tribes and the United States, then all the

provisions contained in this act, shall be construed to apply to

the said line so to be varied, in the same manner, as the said

provisions now apply to the boundary line herein before re-

cited.

Act of 1796, ch. 30, 1 Stat. 469

SECTION 2. That if any citizen of, or other person resi-

dent in the United States, or either of the territorial districts of

the United States, shall cross over, or go within the said bound-

ary line, to hunt, or in anywise destroy the game; or shall drive,

or otherwise convey any stock of horses or cattle to range, on

any lands allotted or secured by treaty with the United States,

to any Indian tribes, he shall forfeit a sum not exceeding one

hundred dollars, or be imprisoned not exceeding six months.

63a

SECTION 3. That if any such citizen, or other person,

shall go into any country which is allotted or secured by treaty

as aforesaid, to any of the Indian tribes south of the river Ohio,

without a passport first had and obtained from the Covernor of

some one of the United States, or the officer of the troops of the

United States commanding at the nearest post on the frontiers,

or such other person as the President of the United States may

from time to time authorize to grant the same, shall forfeit a

sum not exceeding fifty dollars, or be imprisoned, not exceed-

ing three month.

SECTION 4. That if any such citizen, or other person shall

go into any town, settlement, or territory, belonging, or se-

cured by treaty with the United States, to any nation or tribe of

Indians, and shall there commit robbery, larceny, trespass, or

other crime, against the person or property of any friendly

Indian or Indians, which would be punishable, if committed

within the jurisdiction of any State, against a citizen of the

United States; or, unauthorized by law, and with a hostile

intention, shall be found on any Indian land, such offender shall

forfeit a sum not exceeding one hundred dollars, and be impris-

oned not exceeding twelve months: and shall, also, when prop-

erty is taken or destroyed, forfeit and pay to such Indian or

Indians, to whom the property taken and destroyed belongs, a

sum equal to twice the just value of the property so taken or

destroyed; and if such offender shall be unable to pay a sum at

least equal to the said just value, whatever such payment shall

fall short of the said just value, shall be paid out of the Treasury

of the United States: Provided, nevertheless, That no such

Indian shall be entitled to any payment out of the Treasury of

the United States for any such property taken or destroyed, if

he, or any of the nation to which he belongs, shall have sought

private revenge, or attempted to obtain satisfaction by any

force or violence.

SECTION 5. That if any such citizen, or other person,

shall make a settlement on any lands belonging, or secured, or

64a

granted by treaty with the United States, to any Indian tribe, or

shall survey, or attempt to survey, such lands, or designate any

of the boundaries, by marking trees, or otherwise, such offen-

der shall forfeit all his right, title, and claim, if any he hath, of

whatsoever nature or kind the same shall or may be, to the

lands aforesaid, whereupon he shall make a settlement, or

which he shall survey, or attempt to survey, or designate any of

the boundaries thereof, by marking trees or otherwise, and

shall also forfeit a sum not exceeding one thousand dollars, and

suffer imprisonment not exceeding twelve months. And it

shall, moreover, be lawful for the President of the United

States to take such measures and to employ such military force,

as he may judge necessary, to remove from lands belonging, or

secured by treaty, as aforesaid, to any Indian tribe, any such

citizen or other person, who has made or shall hereafter make,

or attempt to make, a settlement thereon; and every right, title,

or claim, forfeited under this act, shall be taken and deemed to

be vested in the United States, upon conviction of the offender,

without any other or further proceeding.

SECTION 6. That if any such citizen, or other person shall

go into any town, settlement, or territory, belonging to any

nation or tribe of Indians, and shall there commit murder, by

killing any Indian or Indians belonging to any nation or tribe of

Indians in amity with the United States, such offender, on

being thereof convicted, shall suffer death.

SECTION 7. That no such citizen, or other person, shall

be permitted to reside at any of the towns or hunting camps, or

any of the Indian tribes as a trader, without a license under the

hand and seal of the superintendent of the department, or of

such other person as the President of the United States shall

authorize to grant licenses for that purpose; which superinten-

dent, or person authorized, shall, on application, issue such

license, for aterm not exceeding two years, who shall enter into

bond with one or more sureties, approved of by the superinten-

dent, or person issuing such license, or by the President of the

6Sa

United States, in the penal sum of one thousand dollars, con-

ditioned for the true and faithful observance of such regulations

and restrictions as are or shall be made for the government of

trade and intercourse with the Indian tribes: and the superin-

tendent, or person issuing such license, shall have full power

and authority to recal the same, if the person so licensed shall

transgress any of the regulations or restrictions, provided for

the government of trade and intercourse with the Indian tribes:

and shall put in suit such bonds as he may have taken, on the

breach of any condition therein contained.

SECTION 8. That any such citizen, or other person, who

shall attempt to reside in any town or hunting camp of any of the

Indian tribes as a trader, without such license, shall forfeit all

the merchandise offered for sale to the Indians, or found in his

Possession, and shall, moreover, be liable to a fine not exceed-

ing one hundred dollars, and to imprisonment not exceeding

thirty days.

SECTION 9. That if any such citizen, or other person,

shall purchase, or receive of any Indian, in the way ©. trade or

barter, a gun, or other article commonly used in hunting, any

instrument of husbandry, or cooking utensil, of the kind usually

obtained by the Indians in their intercourse with white people,

or any article of clothing, except skins or furs, he shall forfeit a

sum not exceeding firty dollars, and be imprisoned not exceed-

ing thirty days.

SECTION 10. That no such citizen, or other person, shall

be permitted to purchase any horse of an Indian, or of any white

man in the Indian territory, without special license for that

purpose; which license, the superintendent, or such other per-

son as the President shall appoint, is hereby authorized to

grant, on the same terms, conditions, and restrictions, as other

licenses are to be granted under this act. And any such person

who shall purchase a horse or horses under such license, before

he exposes such horse or horses for sale, and within fifteen

**

66a

days after they have been brought out of the Indian country,

shall make a particular return to the superintendent, or other

person, from whom he obtained his license, of every horse

purchased by him,< aforesaid; describing such horses by their

color, height, and other natural or articial marks, under the

penalty contained in their respective bonds. And every such

person purchasing a horse or horses, as aforesaid, in the Indian

country, without a special license, shall, for every horse thus

purchased and brought into any settlement of citizens of the

United States. forfeit a sum not exceeding one hundred dollars,

and be imprisoned not exceeding thirty days. And every person

who shall purchase a horse, knowing him to be brought out of

the Indian territory, by any person or persons not licensed as

above to purchase the same, shall forfeit the value of such

horses.

SECTION 11. That no agent, superintendent, or other

person, authorized to grant a license to trade or purchase

horses, shall have any interest or concern in any trade with the

Indians, or in the purchase or sale of any horse to or from any

Indian, excepting for and on account of the United States. And

any person offending herein, shall forfeit a sum not exceeding

one thousand dollars, and be imprisoned not exceeding twelve

months.

SECTION 12. And be it further enacted, That no pur-

chase, grant, lease, or other conveyance of lands, or of any title

or claim thereto, from any Indian, or nation or tribe of Indians

within the bounds of the United States, shall be of any validity,

in law or equity, unless the same be made by treaty, or conven-

tion, entered into pursuant to the constitution: and it shall be a

misdemeanor in any person, not employed under the authority

of the United States, to negotiate such treaty or convention

directly or indirectly, to treat with any such Indian nation, or

tribe of Indians, for the title or purchase of any lands by them

held, or claimed, punishable by fine not exceeding one

thousand dollars, and imprisonment not exceeding twelve

67a

months: Provided nevertheless, that it shall be lawful for the

agent or agents of any state, who may be present at any treaty

held with Indians, under the authority of the United States, in

the presence and with the approbation of the commissioner or

commissioner of the United States, appointed to hold the same,

to propose to, and adjust with the Indians, the compensation to

be made, for their claims to lands within such State, which shall

be extinguished by the treaty.

SECTION 13. That, in order to promote civilization

among the friendly Indian tribes, and to secure the continuance

of their friendship, it shall be lawful for the President of the

United States to cause them to be furnished with useful domes-

tic animals, and implements of husbandry, and with goods or

money, as he shall judge proper, and to appoint such persons

from time to time, as temporary agents, to reside among the

Indians, as he shall think fit: Provided, That the whole amount

of such presents and allowance to such agents, shall not exceed

fifteen thousand dollars per annum.

SECTION 14. That if any Indian or Indians belonging to

any tribe in amity with the United States, shall come over or

cross the said boundary line, into any State or territory inha-

bited by citizens of the United States, and there take, steal, or

destroy, any horse, horses, or other property, belonging to any

citizen or inhabitant of the United States, or of either of the

territorial districts of the United States, or shall commit any

murder, violence, or outrage, upon any such citizen or inhabi-

tant, it shall be the duty of such citizen or inhabitant, his

representative, attorney, or agent, to mae application to the

superintendent, or such other person as the President of the

United States shall authorize for that purpose; who, upon being

furnished with the necessary documents and proofs, shall,

under the direction of instruction of the President of the United

States, make application to the nation or tribe to which such

Indian or Indians shall belong, for satisfaction; and if such

nation or tribe shall neglect or refuse to make satisfaction in a

68a

reasonable time, not exceeding eighteen months, then it shall

be the duty of such superintendent or other person authorized,

as aforesaid, to make return of his doings to the President of the

United States, and forward to him all the documents and proofs

in the case, that such further steps may be taken, as shall be

proper to obtain satisfaction for the injury: and in the mean-

time, in respect to the property so taken, stolen, or destroyed,

the United States guarantee to the party injured an eventual

indemnification: Provided, always, That if such injured party,

his representative, attorney, or agent, shall in any way violate

any of the provisions of this act, by seeking, or attempting to

obtain private satisfaction or revenge, by crossing over the

line, on any of the Indian lands, he shall forfeit all claim upon

the United States for such indemnification: And provided, also,

That nothing herein contained shall prevent the legal apprehen-

sion or arresting within the limits of any State or district of any

Indian having so offended: And provided, further, That it shall

be lawful for the President of the United States to deduct such

sum or sums as shall be paid for the property taken, stolen, or

destroyed by any such Indian, out of the annual stipend which

the United States are bound to pay to the tribe to which such

Indian shall belong.

SECTION 15. That the superior courts in each of the said

territorial districts, and the circuit courts, and other courts of

the United States of similar jurisdiction in criminal causes, in

each district of the United States, in which any offender against

this act shall be apprehended, or, agreeably to the provisions of

this act, shall be brought for trial, shall have, and are hereby

invested with full power and authority to hear and determine all

crimes, offences, and misdemeanors, against this act; such

courts proceeding therein in the same manner, as if such

crimes, offences, and misdemeanors, had been committed

within the bounds of their respective districts: and in all cases

where the punishment shall not be death, the county courts of

quarter sessions in the said territorial districts, and the district

courts of the United States in their respective districts, shall

_—

69a

have, and are hereby invested with. like power to hear and

determine the same, any law to the contrary notwithstanding:

and in all cases where the punishment shall be death, it shall be

lawful for the Governor of either of the territorial districts,

where the offender shall be apprehended, or into which he shall

be brought for trial, to issue a commission of oyer and terminer

to the superior judges of such district, who shall have full power

and authority to hear and determine all such capital cases, in

the same manner as the superior courts of such district have in

their ordinary session: and when the offender shall be ap-

prehended, or brought for trial, into any of the United States,

except Kentucky, it shall be lawful for the President of the

United States to issue a like commission to any one or more

judges of the Supreme Court of the United States, and the judge

of the district in which such offender may have been ap-

prehended, or shall have been brought for trial: which judges,

or any two of them, shall have the same jurisdiction in such

Capital cases as the circuit court of such district, and shall

proceed to trial and judgment in the same manner as such

circuit court might or could do. And the district courts of

Kentucky and Maine shall have jurisdiction of all crimes, of-

fences, and misdemeanors, committed against this act, and

shall proceed to trial and judgment, in the same manner as the

circuit courts of the United States.

SECTION 16. That it shall be lawful for the military force

of the United States, to apprehend every person who shall or

may be found in the Indian country over and beyond the said

boundary line between the United States and the said Indian

tribes, in violation of any of the provisions or regulations of this

act, and him or them immediately to convey in the nearest

convenient and safe route, to the civil authority of the United

States, in some one of the three next adjoining States or dis-

tricts, to be proceeded against in due course of law: Provided,

That no person apprehended by military force as aforesaid.

Shall be detained longer than ten days after the arrest and

before removal.

70a

SECTION 17. That if any person who shall be charged

with a violation of any of the provisions or regulations of this

act, shall be found within any of the United States, or either of

the territorial districts of the United States, such offender may

be there apprehended and brought to trial, in the same manner

as if such crime or offence had been committed within such

State or district; and it shall be the duty of the military force of

the United States, when called upon by the civil magistrate or

any proper officer, or other person duly authorized for that

purpose and having a lawful warrant, to aid and assist such

magistrate, officer, or other person authorized as aforesaid in

arresting such offender, and him committing to safe custody,

for trial according to law.

SECTION 18. That the amount of fines and duration of

imprisonment directed by this act as a punishment for the

violation of any of the provisions thereof, shall be ascertained

and fixed, not exceeding the limits prescribed, in the discretion

of the court before whom the trial shall be had; and that all fines

and forfeitures which shall accrue under this act shall be one

half to the use of the informant and the other half to the use of

the United States; except where the prosecution shall be first

instituted on behalf of the United States, in which case the

whole shall be to their use.

SECTION 19. And be it further enacted, That nothing in

this act shall be construed to prevent any trade or intercourse

with Indians living on lands surrounded by settlements of the

citizens of the United States, and being within the ordinary

jurisdiction of any of the individual states; or the unmolested

use of a road from Washington district, to Mero district; and of

the navigation of the Tennessee river, as reserved and secured

by treaty.

SECTION 20. That the President of the United States be

and he is hereby authorized to cause to be clearly ascertained

and distinctly marked, in all such places as he shall deem

Tla

necessary, and in such manner as he shall direct, any other

boundary lines between the United States and any Indian tribe

which now are or hereafter may be established by treaty.

SECTION 21. That all and every other act and acts, com-

ing within the purview of this act, shall be and they are hereby

repealed: Provided nevertheless, That all disabilities that have

taken place shall continue and remain, all penalties and forfei-

ture that have been incurred may be recovered, and all pro-

Secutions and suits that may have been commenced may be

prosecuted to final judgment under the said act or acts, in the

Same manner as if the said act or acts were continued and in full

force and virtue.

SECTION 22. That this act shall be in force for the term of

two years, and from thence to the end of the session of Con-

gress next thereafter, and no longer.

Act of 1799. ch. 46, 1 Stat. 743,!

SECTION 1. Be it enacted by the Senate and House of

Representatives of the United States of America in Congress

assembled, That the following boundary line, established by

treaty between the United States and various Indian tribes shall

be clearly ascertained and distinctly marked, in all such places,

as the President of the United States shall deem necessary, and

in such manner as he shall direct, to wit: Beginning at the mouth

of the Cayahoga river on Lake Erie, and running thence up the

same, to the portage between that and the Tuscaroras branch of

the Muskingum; thence, down that . . . . the said old line to the

river Saint Mary’s: Provided always, that if the boundary line

between the said Indian tribes and the United States, shall, at

‘Sections 2 through 10, 13 through 15, and 17, 18 and 20 are similar in

language to the identically numbered sections in the Act of 1796 and

will not be repeated.

72a

any time hereafter, be varied by any treaty which shall be made

between the said Indian tribes and the United States, then all

provisions contained in this act shall be construed to apply to

the said line so to be varied, in the same manner as said

provisions apply by force of this act to the boundary line herein

before recited.

SECTION 11. And be it further enacted, That no agent,

superintendent, or other person, authorized to grant a license

to trade, or purchase horses, shall have any interest or concern

in any trade with the Indians, or in the purchase or sale of any

horse, to or from any Indian, excepting for and on account of

the United States. And any person offending herein, shall

forfeit a sum not exceeding one thousand dollars, and be im-

prisoned not exceeding twelve months.

SECTION 12. And be it further enacted, That no pur-

chase, grant, lease, or other conveyance of lands, or of any title

or claim thereto, from any ndian, or nation or tribe of Indians,

within the bounds of the United States, shall be of any validity

in law or equity, unless the sat..e be made by treaty or conven-

tion, entered into, pursuant to the constitution: and it shall be a

misdemeanor in any person, not employed under the authority

of the United States, to negotiate such treaty or convention,

directly or indirectly, to treat with any such Indian nation, or

tribe of Indians, for the title or purchase of any lands by them

held, or claimed, punishable by fine not exceding one thousand

dollars, and imprisonment not exceeding twelve months: Pro-

vided, nevertheless, that it shall be lawful for the agent or

agents of any state, who may be present at any treaty held with

Indians under the authority of the United States, in the pre-

sence, and with the approbation of the commissioner or com-

missioners of the United States, appointed to hold the same, to

propose to, and adjust with the Indians, the compensation to be

made, for their claims to lands within such state, which shall be

extinguished by the treaty.

73a

SECTION 16. That it shall be lawful for the military force

of the United States, to apprehend every person who shall, or

may, be found in the Indian country over and beyond the said

boundary line between the United States and the said Indian

tribes, in violation of any of the provisions or regulations of this

act, and him or them immediately to convey, in the nearest,

convenient, and safe route, to the civil authority of the United

States, in some one of the three next adjoining States or dis-

tricts, to be proceeded against in due course of law: Provided,

That no person apprehended by military foce, as aforesaid,

Shall be detained longer than five days after the arrest, and

before removal. And all officers and soldiers, who may have

any such person or persons in custody, shall treat them with all

the humanity which the circumstances will possibly permit;

ard every officer and soldier who shall be guilty of maltreating

any such person, while in custody, shall suffer such punish-

ment as a court martial shall direct: Provided, That the officer

having custody of such person or persons, shall, if required by

such person or persons, conduct him or them to the nearest

jud~e of the supreme or superior court of any State, who, if the

off. ce is bailable, shall take proper bail, if offered, returnable

to the district court next to be holden in said district, which bail

the said judge is hereby authorized to take, and which shall be

liable to be estreated as any other recognizance for bail in any

court of the United States; and if said judge shall refuse to act,

or the person or persons fail to procure satisfactory bail, then

the said person or persons are to be proceeded with according

to the directions of this act.

SECTION 19. And be it further enacted, That nothing in

this act shall be construed to prevent any trade or intercourse

with Indians living on lands surrounded by settlements of the

citizens of the United States, and being within the ordinary

jurisdiction of any of the individual States; or the unmolested

use of a road from Washington district, to Mero district, and of

the navigation of the Tennessee river, as reserved and secured

by treaty; nor shall this act be construed to prevent any person

74a

or person traveling from Knoxville to Price’s settlement (so-

called) provided they shall travel in the trace or path which is

usually travelled, and provided the Indians make no objection;

but if the Indians object, the President of the United States is

hereby authorized to issue a proclamation, prohibiting all

travelling on said trace, after which, the penalties of this act

shall be incurred by every person travelling or being found on

said trace, within the Indian boundary without a passport.

SECTION 21. That this act shall be in force from and after

the third day of March, one thousand seven hundred and

ninety-nine, and shall continue in force the term of three years,

and, so far as respects the proceedings under this act, it is to be

understood that the act, entitled ‘‘An act to amend an act,

entitled ‘An act giving effect to the laws of the United States

within the district of Tennessee,’ ’’ is not to operate. And all

disabilities which have taken place, shall continue and remain;

and all penalties and forfeitures that have been incurred, may

be recovered; and all prosecutions and suits which may have

been commenced, may be prosecuted to final judgment, under

the act to regulate trade and intercourse with the Indian tribes,

and to preserve peace on the frontiers; which act expires, by its

own limitation, on the third day of March, one thousand seven

hundred and ninety-nine, in the same manner as if the said act

was continued in force.

Act of 1802, ch. 13, 2 Stat. 139,?

SECTION 1. Be it enacted by the Senate and House of

Representatives of the United States of America in Congress

2Sections 2, 3, 6 through 8, 11, 14, 15, 17, 18 and 20 are similar in

language to the identically numbered sections in the Act of 1796 so

they won't be repeated.

Section 16 is similar in language to Section 16 of the Act of 1799 so it

won't be repeated.

75a

assembled, That the following boundary line, established by

treaty between the United States and various Indian tribes,

shall be clearly ascertained, and distinctly marked in all such

places as the President of the United States shall deem neces-

sary, and in such manner as he shall direct, to wit: .. . Provided

always, that if the boundary line between he said Indian tribes

and the United States, shall, at any time hereafter, be varied.

by any treaty which shall be made between the said Indian

tribes and the United States, then all the provisions contained

in this act, shall be construed to apply to the said line so to be

varied, in the same manner, as said provisions apply, by force

of this act, to the boundary line herein before recited.

SECTION 4. That if any robbery, larceny, trespass, or any

other crime, against the person or property of any friendly

Indian or Indians, which would be punishable, if committed

within the jurisdiction of any State, against a citizen of the

United States; or, unauthorized by law, and with a hostile

intention, shall be found on any Indian land, such offender shall

forfeit a sum not exceeding on-hundred dollars, and be impri-

soned not exceeding twelve months: and shall also, when prop-

erty is taken or destroyed, forfeit and pay to such Indian or

Indians, to whom the property taken and destroyed belongs, a

sum equal to twice the just value of the property so taken or

destroyed; and if such offender shall be unable to pay a sum at

least equal to the said just value, whatever such payment shall

fall short of the said just value, shall be paid out of the Treasury

of the United States: Provided, nevertheless, That no such

Indian sha!l be entitled to any payment out of the Treasury of

the United States, for any such property taken or destroyed, if

he, or any of the nation to which he belongs, shall have sought

private revenge, or attempt to obtain satisfaction by any force

or violence.

SECTION 5S. That if any such citizen, or other person,

shall make a settlement on any lands belonging or secured, or

granted by treaty with the United States, to any Indian tribe, or

F\

76a

shall survey, or attempt to survey, such lands, or designate any

of the boundaries, by marking trees, or otherwise, such offen-

der shall forfeit a sum not exceeding one thousand dollars, and

suffer imprisonment not exceeding twelve months. And it

shall, moreover, be lawful for the President of the United

States to take such measures, and to employ such military

force, as he may judge necessary, to remove from lands, be-

longing or secured by treaty, as aforesaid, to any Indian tribe,

any such citizen, or other person, who has made, or shall

hereafter make, or attempt to make a settlement thereon.

SECTION 9. And be it further enacted, That if any such

citizen, or other person, shall purchase, or receive of any

Indian, in the way of trade or barter, a gun, or other article

commonly used in hunting, any instrument of husbandry, or

cooking utensil, of the kind usually obtained by the Indians, in

their intercourse with white people, or any article of clothing,

excepting skins or furs, he shall forfeit a sum not exceeding fifty

dollars, and be imprisoned not exceeding thirty days.

SECTION 10. And be it further enacted, That no such

citizen, or other person, shall be permitted to purchase any

horse of an Indian, or of any white man in the Indian territory,

without special license for that purpose; which license, the

superintendent, or such other person as the President shall

appoint, is hereby authorized to grant, on the same terms,

conditions, and restrictions, as other licenses are to be granted

under this act: and any such person, who shall purchase a horse

or horses, under such license, before he exposes such horse or

horses for sale, and within fifteen days after they have been

brought out of the Indian country, shall make a particular

return to the superintendent, or other person, from whom he

obtained his license, of every horse purchased by him as

aforesaid; describing such horses by their color, height, and

other natural or artificial marks, under the penalty contained in

their respective bonds; and every such person purchasing a

horse or horses, as aforesaid, in the Indian country, without a

#%

er

77a

special license, shall, for every horse thus purchased and

brought into any settlement of citizens of the United States,

forfeit a sum not exceeding one hundred dollars, and be impris-

oned not exceeding thirty days; and every person who shall

purchase a horse, knowing him to be brought out of the Indian

territory, by any person or persons. not licensed, as above, to

purchase the same, shall forfeit the value of such horse.

SECTION 12. And be it further enacted, That no pur-

chase, grant, lease, or other conveyance of lands, or of any title

or claim thereto, from any Indian, or nation, or tribe of Indians,

within the bounds of the United States, shall be of any validity,

in law or equity, unless the same be made by treaty or conven-

tion, entered into pursuant to the constitution: and it shall be a

misdemeanor in any person, not employed under the authority

of the United States, to negotiate such treaty or convention

directly or indirectly, to treat with any such Indian nation, or

tribe of Indians, for the title or purchase of any lands by them

held or claimed, punishable by fine not exeeding one thousand

dollars, and imprisonment not exceeding twelve months: Pro-

vided, nevertheless, that it shall be lawful for the agent or

agents of any state, who may be present at any treaty held with

Indians, under the authority of the United States, in the pre-

sence, and with the approbation of the commissioner or com-

missioners of he United States, appointed to hold the same, to

Propose to, and adjust with the Indians, the compensation to be

made, for their claims to lands within such State, which shall be

extinguished by the treaty.

SECTION 13. And be it further enacted, That in order to

promote civilization among the friendly Indian tribes, and to

secure the continuance of their friendship, it shall be lawful for

the President of the United States to cause them to be furnished

with useful domestic animals, and implements of husbandry,

and with goods or money, as he shall judge proper, and to

appoint such persons, from time to time, as temporary agents,

to reside among the Indians, as he shall think fit: Provided.

-'

78a

That the whole amount of such presents, and allowance to such

agents, shall not exceed fifteen thousand dollars per annum.

SECTION 19. And be it further enacted, That nothing in

this act shall be construed to prevent any trade or intercourse

with Indians living on lands surrounded by settlements of the

citizens of the United States, and being within the ordinary

jurisdiction of any of the individual states; or the unmolested

use of a road from Washington district to Mero district, or to

prevent the citizens of Tennessee from keeping in repair the

said road, under the direction or orders of the governor of said

state, and of the navigation of the Tennessee river, as reserved

and secured by tre .cy; nor shall this act be construed to prevent

any person or persons travelling from Knoxville to Price’s

settlement, or to the settlement on Obed’s river (so called),

provided they shall travel in the trace or path which is usually

1. and provided the Indians make no objection; but if

ans object, the President of the United States is hereby

iZe@ to issue a proclamation, prohibiting all travelling on

races, or either of them, as the case may be, after which,

the penalties of this act shall be incurred by every person

travelling or being found on said traces, or either of them, to

which the prohibition may apply, within the Indian boundary,

without a passport.

SECTION 21. That the President of the United States be

authorized to take such measures, from time to time, as to him

may appear expedient to prevent or restrain the vending or

distributing of spiritous liquors among all or any of the said

Indian tribes, anything herein contained to the contrary thereof

notwithstanding.

SECTION 22. That this act shall be in force from the

passage thereof; and as far as respects the proceedings under

this act, it is to be understood that the act, entitled “An Act to

amend an act, entitled ‘An act giving effect to the laws of the

*%

79a

United States within the district of Tennessee,’ ’’ is not to

operate.

Act of 1834, ch. 161, 4 Stat. 729

SECTION 1. Be it enacted by the Senate and House of

Representatives of the United States of America, in Congress

assembled, That all that part of the United States west of the

Mississippi, and not within the states of Missouri and

Louisiana, or the territory of Arkansas, and, also, that part of

the United States east of the Mississippi river, and not within

any State to which the Indian title has not been extinguished,

for the purposes of this act, be taken and deemed to be the

Indian country.

SECTION 2. That no person shall be permittd to trade

with any of the Indians (in the Indian country) without a license

therefor from a superintendent of Indian affairs, or Indian

agent, or sub-agent, which license shall be issued for a term not

exceeding two years for the tribes east of the Mississippi, and

not exceeding three years for the tribes west of that river. And

the person applying for such license shall give bond in a penal

sum not exceeding five thousand dollars, with one or more

sureties, to be approved by the person issuing the same, con-

ditioned that such person will faithfully observe all the laws and

regulations made for the government of trade and intercourse

with the Indian tribes, and in no respect violate the same. And

the superintendent of the district shall have power to revoke

and cancel the same, whenever the person licensed shall, in his

opinion, have transgressed any of the laws or regulations pro-

vided for the government of trade and intercourse with the

Indian tribes, or that it would be improper to permit him to

remain in the Indian country. And no trade with the said tribes

shall be carried on withi their boundary, except at certain

suitable and convenient places, to be designated from time to

time by the superintendents, agents, and sub-agents, and to be

inserted in the license. And it shall be the duty of the persons

80a

granting or revoking such licenses, forthwith to report the same

to the commissioner of Indian affairs, for his approval or disap-

proval.

SECTION 3. That any superintendent or agent may refuse

an application for a license to trade, if he is satisfied that the

applicant is a person of bad character, or that it would be

improper to permit him to reside in the Indian country, or if a

license, previously granted to such applicant, has been re-

voked, or a forfeiture of his bond decreed. But an appeal may

be had from the agent or the Superintendent, to the commis-

sioner of Indian affairs; and the President of the United States

shall be authorized, whenever in hjs opinion the public interest

may require the same, to prohibit the introduction of goods, or

of any particular article, into the country belonging to any

Indian tribe, and to direct all licenses to trade with such tribe to

be revoked, and all applications therefor to be rejected; and no

trader to any other tribe shall, so long as such prohibition may

continue, trade with any Indians of or for the tribe against

which such prohibition is issued.

SECTION 4. That any person other than an Indian who

shall attempi to reside in the Indian country as a trader, or to

introduce goods, or to trade therein without such license, shall

forfeit all merchandise offered for sale to the Indians, or found

in his possession, and shall moreover forfeit and pay the sum of

five hundred dollars.

SECTION 5. That no license to trade with the Indians shall

be granted to any person except citizens of the United States:

Provided, That the President shall be authorized to allow the

employment of foreign boatmen and interpreters, under such

regulations as he may prescribe.

SECTION 6. That if a foreigner shall go into the Indian

country without a passport from the War Department, the

superintendent, agent, or sub-agent of Indian affairs, or from

8la

the officer of the United States commanding the nearest mili-

tary post on the frontiers, or shall remain intentionally therein

after the expiration of such passport, he shall forfeit and pay the

sum of one thousand dollars; and such passport shall express

the object of such person, the time he is allowed to remain, and

the route he is to travel. :

SECTION 7. That if any person other than an Indian shall

within the Indian country, purchase or receive of any Indian, in

the way of barter, trade, or pledge, a gun, trap, or other article

commonly used in hunting, any instrument of husbandry or

cooking utensils of the kind commonly obtained by the Indians

in their intercourse with the white people, or any other article

of clothing, except skins or furs, he shall forfeit and pay the sum

of fifty dollars.

SECTION 8. That if any person, other than an Indian,

shall, within the limits of any tribe with whom the United States

shall have existing treaties, hunt, or trap, or take and destroy, |

any peltries or game, except for subsistence in the Indian

country, such person shall forfeit the sum of five hundred

dollars, and forfeit all the traps, guns, and ammunition in his

possession, used or procured to be used for that purpose, and

peltries so taken.

SECTION 9. That

This text is long and has been trimmed here. Open the source document for the complete record.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.