Ancient Indian Land Claims

order to minimize disputes with the Indians, enacted laws
requiring colonial approval for individually negotiated land
cessions. Unauthorized and unrestricted encroachments on Indian.
lands continued, however, and the Crown recognized the need to
devise plans for a comprehensive and uniform Indian policy. In
1754, for example, the Lords of Trade in England prepared a Plan,
for General Consent of the colonies which provided that "the
sole direction of Indian affairs be placed in the hands of some
single person." Clinton & Hotopp, supra, 31 Me. L. Rev. at 21
(quoting VI Documents Relative to the Colonial History of the
State of New York 903-95 (E.B. O'Callaghan ed. 1855)). The
efforts of the Crown culminated in the issuance of the Royal
Proclamation of 1763, which forbade the purchase or
settlement of Indian lands by anyone, including the colonial
governors, without permission of the Crown. See Clinton &
Hotopp, supra, 31 Me. L. Rev. at 22.

The perceived need for a national Indian policy was
shared by the colonists, resulting in the creation of certain
federal administrative mechanisms even prior to the adoption of
the Articles of Confederation. Initially in 1774, for instance,
Benjamin Franklin drafted a plan at the Albany Conference for a
union of the colonies and for the exclusive regulation of Indian
affairs by a "President General." Id. at 21. Subsequently in
1775 the Continental Congress during the Revolutionary War
created a Department of Indian Affairs to secure the friendship
of the tribes and to counter British-inspired hostilities. By
the Resolution of 1775, the Continental Congress established
three departments to manage Indian affairs and manage peaceful
relations. II Journals of the Continental Congress 174-77.
Each department was "to treat with the Indians

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preserve peace and friendship with the said Indians, and to
prevent their taking any part in the present commotions."
Id.
at 175. In establishing these departments, the Continental
Congress was "exercising definite governmental power for all the
colonies [and] declared its jurisdiction over Indian tribes."

F. Cohen, Handbook of Federal Indian Law 9 (1942).

Rather than create an entirely new policy, the

Continental Congress continued the basic approach of the British
Proclamation of 1763, which was to focus concern on those Indian
tribes located in what was known as "Indian Country," 1.e.,
those Indian lands lying west of the boundary line of the 1763
Proclamation separating the lands of the Indian tribes from
colonial settlements. The subject lands of this action are
located in this "Indian Country." Paterson & Roseman, "A
Reexamination of Passamaquoddy v. Morton," 31 Me. L. Rev. 115,
126-27, 150 n.153 (1979). Two years later in 1777 the
Continental Congress established an Eastern Indian Agency having
Jurisdiction over "the Indians in Nova Scotia and the Tribes to
the Northward and Eastward thereof." Id. at 127 (citing 7 Jour.
of the Cont. Cong. 34 (1777)).

These federal mechanisms were continued under the Articles of Confederation, which were approved in 1777 and became effective in 1781. Article IX, clause 1, granted Congress the "sole and exclusive right and power of determining on peace and war [and] entering into treaties and

alliances...."

...

All powers not "expressly delegated" are

retained by each State. Art. II. Article IX, clause 4,
specifically referring to Indian affairs, provided that:

"The United States in Congress
assembled shall also have the sole
and exclusive right and power of ...

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[r]egulating the trade and managing
all affairs with the Indians, not
members of any of the States, provided
that the legislative right of any
State within its own limits be not
infringed or violated."

In carrying out its Article IX responsibilities the Congress of
the Confederation created an administrative framework that

"followed the colonial precedent."

Cohen, supra, at 9. The

Congress had charged a committee to draft a document "for the
complete arrangement and government of the Indian Department."
30 Jour. of the Cont. Cong. 332 (1786) (cited in Paterson &
Roseman, supra, 31 Me. L. Rev. at 128). The result was the 1786
Ordinance for the Regulation of Indian Affairs, 31 Jour. of the
Cont. Cong. 491 (cited in Cohen, supra, at 9 n.7), which
established two departments northern and southern the
northern of which encompassed the subject lands claimed by the
Oneidas. The superintendent of each department had power to
grant licenses to trade and live with the Indians and was
duty bound to execute "such regulations, as Congress shall, from
time to time, establish respecting Indian Affairs." 31 Jour.
of the Cont. Cong 491.

Two such Congressional enactments are central to this
case. One, the Proclamation of September 22, 1783, affirmed the
principal policy of the Royal Proclamation of 1763 by requiring
federal consent for all purchases to which the 1783 Proclamation
applied. See Mohegan Tribe v. Connecticut, 638 F.2d 612, 616
(2d Cir.), cert. denied, 452 U.S. 968 (1981). The 1783
Proclamation recited the Congress' power under Article IX,
clause 4, stressed the needs to remove and prevent "all cause of
quarrel or complaint between [the Indians] and the United
States, and declared that:

"[T]he United States in Congress
assembled ... do hereby prohibit and
forbid all persons from making settle-
ments on lands inhabited or claimed by

Indians, without the limits or juris-
diction of any particular State, and
from purchasing or receiving any gift
or cession of such lands or claims
without the express authority and
directions of the United States in
Congress assembled.

"And it is moreover declared, that
every such purchase or settlement,
gift or cession, not having the authority
aforesaid, is null and void, and that
no right or title will accrue in con-
sequence of any such purchase, gift,
cession, or settlement," 25 Jour. of
the Cont. Cong. 602 (1783), quoted in
Clinton & Hotopp, supra, 31 Me. L. Rev.
at 25-26.

The 1783 Proclamation represented an effort by Congress to
clarify the authority of the federal government vis-a-vis the
states and to avoid a costly Indian war. Clinton & Hotopp,

supra, 31 Me. L. Rev. at 25.

The other enactment was the Treaty of Fort Stanwix, 7 Stat. 15, concluded in October 1784 between the federal commissioners and the Six Nation Iroquois Indian Confederacy ("Six Nations"), which consisted of the Seneca, Cayuga, Onondaga, Oneida, Mohawk, and Tuscarora tribes. Of these, the Oneida and Tuscarora tribes had sided with the states in the American Revolution; the remaining four were hostile tribes who had sided with the British. The central government attached considerable importance to the need for a federal treaty with the Six Nations, since it feared that any attempted expulsion of the Indians would produce a prolonged and costly war. Cohen, supra, at 418. New York State, however, considering itself to have authority over Indians located on their own tribal lands within the borders of New York, "stopped at nothing," id., to obstruct the federal efforts, including arresting federal agents negotiating the treaties. Id. The Fort Stanwix treaty made special provisions in Article II for the two friendly tribes, stating:

P. 040

14.

This was pursuant to Congress' instructions to the commissioners

negotiating the treaty, to

"reassure the said tribes of the
friendship of the United States and
that they may rely that the lands
which they claim as their inheritance
will be reserved for their sole use
and benefit until they may think it
for their own advantage to dispose of
the same. n
25 Jour. of the Cont. Cong.
687.5/

Subsequently, New York State entered into the 1785 and
1788 "state" treaties with the Oneidas, purportedly purchasing
Indian title to over 5 1/2 million acres of their aboriginal
land. The details of the allegations concerning the conduct of
New York's officials during the negotiations are set forth in
full at 520 F. Supp. at 1287-88 and Oneida Indian Nation v.
United States, 37 Ind. Cl. Com. 522 (1976), aff'd, 576 F.2d 870
(Ct. Cl. 1978), and need only be summarized briefly. In
essence, plaintiffs allege that the negotiations were conducted
in an atmosphere of deceit, threats and coercion. In
particular, the 1785 treaty involving approximately 300,000
acres was concluded only after then-Governor Clinton had
threatened to withhold state protection against trespasses on
Indian lands if the Oneidas persisted in refusing an outright
sale of their land. In negotiating the 1788 treaty involving
nearly 5 million acres state officials induced the Oneidas to
negotiate by suggesting that certain leases which the Oneidas
had granted to a private speculator could jeopardize all their
lands as well as their friendship with New York State, without
informing the Oneidas that the State had earlier declared those
private leases to be void. Governor Clinton apparently gave

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