Appendix — State of Connecticut v. Mohegan Tribe
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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.
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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
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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
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