452 U.S. 968 (1981)

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U.S. Supreme Court

CONNECTICUT v. MOHEGAN TRIBE , 452 U.S. 968 (1981)

452 U.S. 968

No. 80-1365

Supreme Court of the United States

June 22, 1981

On petition for writ of certiorari to the United States Court of Appeals for the Second Circuit.

The petition for a writ of certiorari is denied.

Justice REHNQUIST, dissenting.

This case involves the scope and applicability of the Nonintercourse statute, first enacted in 1790 and now codified in 25 U.S.C. 177, which prohibits the sale of Indian land unless conveyed by a treaty approved by the Federal Government. The Court of Appeals for the Second Circuit held that the terms of the Nonintercourse statute apply to all land throughout the United States. Because the decision below casts doubt on the title to land in millions of acres in the eastern part of the United States, I would grant the petition for certiorari.

In 1977, respondent brought suit to obtain possession of approximately 600 acres of land currently in the possession of the State of Connecticut. Respondent claimed that it owned this land from "time immemorial" and that the land was subsequently acquired from respondent without the approval of the United States, in violation of the Nonintercourse statute of 1790 and its successor statutes. The District Court denied petitioner's motion to dismiss, but certified the question for interlocutory appeal pursuant to 28 U.S.C. 1292(b).

The Court of Appeals for the Second Circuit affirmed. 638 F.2d 612 ( 1980). Petitioner argued that the Nonintercourse

Page 452 U.S. 968 , 969

statute applies only to Indian land in "Indian country," which would be primarily western lands as defined in the various Indian Trade and Intercourse Acts, and not to all Indian land. Petitioner also pointed to a provision in several of the Nonintercourse statutes which stated that nothing in the statute prohibited trade or intercourse with Indians living on land "surrounded by settlements." See id., at 618. It was petitioner's view that Indian land in Connecticut was exempt from the provisions of the Nonintercourse statute, since it was clearly "surrounded by settlements." The court observed:

"In these suits, [petitioner] states have marshalled historical evidence which suggests that the eastern Indian tribes and their lands were always understood to be under the jurisdiction of the states. While these arguments have been held to be unavailing in a number of other contexts, such as whether the eastern tribes were properly considered 'tribes' under the protection of the federal government, and whether they were considered 'tribes' for purposes of sovereign immunity to suit, until this action, no court has had to address directly the issue of whether the Nonintercourse statute was intended to apply to land held by the eastern tribes. The State's argument is admittedly appealing in that it would explain why both the states and the federal government have ignored so completely what the Indians assert to be the dictates of the Nonintercourse statute." Id., at 615 (footnotes and emphasis added).

Notwithstanding this concession, the Court of Appeals, after canvassing the history of the Indian statutes and relevant aspects of Indian land tenure, ultimately concluded that the Nonintercourse statute applied to all Indian land, whether or not it was in Indian country, and thus included the land claimed by respondents.

There can be little doubt that the Court of Appeals' un- [452 U.S. 968 , 970]

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