Tribal Property

In a reaffirmation of longstanding doctrine, a federal court in New York has applied the Trade and Intercourse Act of 1790, as amended, 25 U.S.C. §177 (the “Nonintercourse Act”), to hold that the title to land of the Canadian St. Regis Band of Mohawk Indians retains title to certain lands in the state of New York since the transfer of those lands from the tribe to the state of New York was never ratified by Congress as required by the Nonintercourse Act. Canadian St. Regis Band of Mohawk Indians v. New York, 2022 WL 768669 (N.D. N.Y. 2022). The court emphasized that retention of title does not necessarily mean that the tribe has recourse to any particular remedy such as damages or ejectment; rights and remedies, the court noted, as separate. Other cases have appeared to hold (or have held) that Indian nations in New York may hold bare title to …

Tribal title can only be extinguished by federal, not state, law Read More »

in Penobscot Nation v. Mills, 2017  U.S. App. LEXIS 11704 (1st Cir. 2017), the First Circuit held (over a vigorous dissent by Judge Torruella), that the Maine Indian Claims Settlement Act, 25 U.S.C. §1722(i) and the Maine Implementing Act, Me. Rev. Stat. tit. 30, § 6203(8), confirmed ownership of islands to the Penobscot Nation but no rights in the surrounding waters and no rights to fish in those waters. The court focused on the wording of the state act defined the Penobscot lands to include “the islands in the Penobscot River” and that the word “in” plainly referred to the islands and not the water surrounding them. Because the court found the language to be clear and unambiguous, there was no reason to apply the Indian law canons of construction that require ambiguities to be resolved in favor of Indian nations and as those nations would have understood them. The court relied …

Tribal rights in islands deemed not to include riparian and fishing rights in surrounding waters Read More »

The Supreme Court’s recent reaffirmation of the long-standing rule that that Indian nations have sovereign immunity from suit in the absence of waiver by the tribe or abrogation by Congress, Michigan v. Bay Mills Indian Cmty., 134 S.Ct. 2024 (2014),  led the Second Circuit to reaffirm its earlier decision to deny a county the power to foreclose on tribal land for failure to pay state property taxes. Cayuga Indian Nation v. Seneca Cnty., 2014 WL 3746795 (2d Cir. 2014). While having a right without a remedy would seem to render the right meaningless, the oddity of this situation can be attributed to the vagaries of federal Indian law and casts doubt on the wisdom of earlier decisions that authorized the state to tax tribal land. For the earlier Second Circuit decision, see Oneida Indian Nation of N.Y. v. Madison Cnty., 605 F.3d 149 (2d Cir. 2010), vacated, 131 S.Ct. 704 (2011). The Supreme Court decision …

Tribal sovereign immunity precludes tax foreclosure action against tribe Read More »

Applying the standards set down by the Second Circuit in Oneida Indian Nation of N.Y. v. Madison County, 605 F.3d 149 (2d Cir. 2010, a federal district in New York affirmed that a county could not foreclose on tribal land for nonpayment of state property taxes on the ground that the tribe has sovereign immunity that it has not waived and that has not been abrogated by federal law. Cayuga Indian Nation of N.Y. v. Seneca County, 2012 U.S. Dist. LEXIS 117245 (W.D.N.Y. 2012).

President Barack Obama announced on December 16, 2010 that the United States would join more than 140 other countries in supporting the United Nations Declaration on the Rights of Indigenous Peoples. That Declaration supports the rights of indigenous peoples to protection of their property, cultures, and religious traditions, as well as guaranteeing self-determination. A detailed statement explaining U.S. support for the Declaration is available here.

In the late  19th century, the United States took lands from American Indian nations and transferred them to individual tribal members. Those lands were often managed by the federal government through the Bureau of Indian Affairs (BIA) which would arrange to lease the lands for grazing and mining purposes. The U.S. was supposed to pay the royalties to the Indian owners but often did not do so and over time many records were lost. Twenty years of litigation has ended with a settlement by which the US will pay $1.4 billion to class members (roughly $1000 per person) and in addition establish a $2 billion fund for the voluntary buy-back and consolidation of fractionated land interests. Read Interior Department press release. Here is the Turtletalk report on the settlement.