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60-692: In several instances, these settlements ended live claims of aboriginal title in the United States . The first two—the Rhode Island Claims Settlement Act and the Maine Indian Claims Settlement Act—;extinguished all aboriginal title in Rhode Island and Maine, respectively, following initial court rulings in the tribes' favor. The Mohegan Nation (Connecticut) Land Claims Settlement of 1994 also followed

120-402: A clear statement rule . The earliest and most widely acknowledged method of extinguishing aboriginal title was by treaty. Even fraud will not void the extinguishment of aboriginal title by the federal government (or by any actor, if the tribe waives the issue in the lower court). Some cases hold that an executive order may extinguish aboriginal title, although the dominant view is that

180-501: A clear statement —is plenary and exclusive. Such extinguishment is not compensable under the Fifth Amendment , although various statutes provide for compensation. Unextinguished aboriginal title provides a federal common law cause of action for ejectment or trespass , for which there is federal subject-matter jurisdiction . Many potentially meritorious tribal lawsuits have been settled by Congressional legislation providing for

240-445: A "long time". Unlike nearly all common law jurisdictions, the United States acknowledges that aboriginal title may be acquired post-sovereignty; a "long time" can mean as little as 30 years. However, the requirement of exclusivity may prevent any tribe from claiming aboriginal title where multiple tribes once shared the same area. Improper designation of an ancestral group may also bar acknowledgement. 'Cramer v. United States' (1923)

300-539: A "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated , except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust . The power of Congress to extinguish aboriginal title—by "purchase or conquest," or with

360-541: A Century by any other means than that of purchasing the favour of the numerous Indian inhabitants. Anishinaabe jurist John Borrows has written that "the Proclamation illustrates the British government's attempt to exercise sovereignty over First Nations while simultaneously trying to convince First Nations that they would remain separate from European settlers and have their jurisdiction preserved." Borrows further writes that

420-494: A final decision by a Court of Claims . Even before a final ICC judgement, if a tribe claims compensation on the theory that its lands were extinguished, it cannot later attempt to claim valid title to those lands. An ICC judgement acts as a bar to future claims, and an ICC payment conclusively establishes extinguishment (although, for timing purposes, the ICC has not jurisdiction to extinguish). Even though ICCA settlements are binding,

480-565: A joint opinion of Britain's Attorney General and Solicitor General regarding land purchases in India ) were circulated in the colonies, edited such that it appeared to apply to purchases from Native Americans. The Royal Proclamation was among the enumerated complaints in the Declaration of Independence : He has endeavoured to prevent the Population of these States; for that Purpose ... raising

540-519: A judicial ruling in favor of a tribe, but did not extinguish all aboriginal title in the state. Other tribes had pending land claims. The Passamaquoddy (1975), Narragansett I and II (1976), and Mohegan (1980, 1982) cases occurred in the U.S. Supreme Court 's Oneida I (1974) decision, which held that there was federal subject-matter jurisdiction for such claims. The Florida Indian (Miccosukee) Land Claims Settlement and Florida Indian (Seminole) Land Claims Settlement relate to water rights in

600-499: A line running along the crest of the Allegheny Mountains became (British) Indian Territory , barred to settlement from colonies east of the line. The proclamation line was not intended to be a permanent boundary between the colonists and Native American lands but rather a temporary boundary that could be extended further west in an orderly, lawful manner. It was also not designed as an uncrossable boundary; people could cross

660-694: A war with Native Americans, which angered colonial land speculators. Others argue that the Royal Proclamation imposed a fiduciary duty of care on the Crown. George Washington was given 20,000 acres (81 km ) of land in the Ohio region for his services in the French and Indian War. In 1770, Washington took the lead in securing the rights of himself and his old soldiers in the French War, advancing money to pay expenses for

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720-540: Is generally valid. The Second Circuit has held that states retained the power to purchase land directly from tribes during the Articles of Confederation period, and thus those purchases remain valid even if un-ratified by the federal government. The infamous Lone Wolf v. Hitchcock (1903) held that Congress's power to extinguish was plenary, notwithstanding Indian treaties to the contrary. While this decision has not been overruled per se , it has been modified in effect by

780-564: The Everglades . In Canada , these settlements involve First Nations . Aboriginal title in the United States The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title (also known as " original Indian title " or " Indian right of occupancy "). Native American tribes and nations establish aboriginal title by actual, continuous, and exclusive use and occupancy for

840-721: The Mississippi River was ceded to Spain . In contrast, all French colonial territory east of the Mississippi River and south of Rupert's Land (save Saint Pierre and Miquelon , which France kept) was ceded to Great Britain . Both Spain and Britain received some French islands in the Caribbean, while France kept Haiti and Guadeloupe . The Proclamation of 1763 dealt with managing former French territories in North America that Britain acquired following its victory over France in

900-731: The Ohio Country and the Treaty of Hard Labour adjusted the border with the Cherokee in the Carolinas. The Treaty of Hard Labour was followed by the Treaty of Lochaber in 1770, adjusting the border between Virginia and the Cherokee. These agreements opened much of what is now Kentucky and West Virginia to British settlement. The land granted by the Virginian and North Carolinian government heavily favored

960-587: The dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title . Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Mitchel v. United States (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. In both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable , except to The Crown . The Indian Removal Act of 1830 established policy that resulted in

1020-649: The "surplus," as declared by the government, sold to non-Indians. Allotment ended in 1934. The Alaska Native Claims Settlement Act (1971) extinguished all aboriginal title in Alaska (although the legitimacy of the act remains disputed by some Alaskan natives ). Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island (1978) and Maine (1980). According to Prof. Stuart Banner: U.S. Const. art. I, § 8, cl. 3 provides: [The Congress shall have Power] To regulate Commerce with foreign Nations, and among

1080-525: The 250th anniversary of the Royal Proclamation was celebrated in Ottawa with a meeting of Indigenous leaders and Governor-General David Johnston. The Aboriginal movement Idle No More held birthday parties for the document at various locations across Canada. The influence of the Royal Proclamation of 1763 on the coming of the American Revolution has been variously interpreted. Many historians argue that

1140-617: The Act extinguished aboriginal title on all lands conveyed before those acts. Some of the statutes cited by the Fifth Circuit applied to Arkansas and Missouri as well. Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Utah and Nevada by 1880, and Arizona and New Mexico by 1886. Royal Proclamation of 1763 [REDACTED] Canada portal The Royal Proclamation of 1763

1200-526: The Conditions of new Appropriations of Lands. The Confederation Congress Proclamation of 1783 prohibited the extinguishment of aboriginal title without the consent of Congress. But, the states, particularly New York, purchased lands from tribes during this period without the consent of the federal government. These purchases were not tested in court until the 1970s and 1980s, when the Second Circuit held that

1260-601: The Confederation Congress had neither the authority under the Articles of Confederation nor the intent to limit the ability of states to extinguish aboriginal title within their borders; thus, the Proclamation was interpreted to apply only to the federal territories. States had lost the ability to extinguish aboriginal title with the ratification of the United States Constitution in 1788, which vested authority over commerce with American Indian tribes in

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1320-682: The Eastern half of the United States, ... they needed less than 40 years for the Western half." Unlike the Eastern purchases, "some of the transactions in the West involved immense areas of land. More than 75 percent of Nevada, for example, was acquired in two bites; the large majority of Colorado in three. It was not long before the West was dotted with Indian reservations." Congress banned further Indian treaties by statute in 1871, but treaty-like instruments continued to be used to alienate Indian land and designate

1380-466: The French and Indian War and regulating colonial settlers' expansion. It established new governments for several areas: the province of Quebec , the new colonies of West Florida and East Florida , and a group of Caribbean islands, Grenada , Tobago , Saint Vincent , and Dominica , collectively referred to as the British Ceded Islands. At the outset, the Royal Proclamation of 1763 defined

1440-492: The Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction . Fletcher v. Peck (1810) and Johnson v. McIntosh (1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuits , where land speculators deceived the court with a falsified case and controversy in order to elicit the desired precedent. In Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832),

1500-643: The Native peoples who were becoming increasingly resentful of "settler encroachments on their lands" and were capable of becoming a serious threat to British colonial settlement. Advice given by a Sir William Johnson , superintendent of Indian Affairs in North America, to the Board of Trade on 30 August 1764, expressed that: The Indians all know we cannot be a Match for them in the midst of an extensive woody Country ... from whence I infer that if we are determined to possess Our Posts, Trade & ca securely, it cannot be done for

1560-576: The Ohio Country, who were dissatisfied with British postwar policies in the Great Lakes region after the end of the Seven Years' War. They were able to take over a large number of the forts which commanded the waterways involved in trade within the region and export to Great Britain. The proclamation line had been conceived before the onset of Pontiac's Rebellion, but the outbreak of this conflict hastened

1620-507: The Royal Proclamation along with the subsequent Treaty of Niagara , provide for an argument that "discredits the claims of the Crown to exercise sovereignty over First Nations" and affirms Aboriginal "powers of self-determination in, among other things, allocating lands". The functional content of the proclamation was reintroduced into American law by the decision of the U.S. Supreme Court in Johnson v. McIntosh (1823). In October 2013,

1680-559: The act applied in the entire United States. Indian reservation policy resulted in the extinguishment of all aboriginal title outside of reservations in Iowa , Minnesota , Texas , and Kansas by 1870, Wyoming , Nebraska , and Colorado by 1880, and Montana by 1886. The Fifth Circuit has held that the Louisiana Land Claims Act , requiring all persons with "incomplete title" to file claims, applied to aboriginal title. Thus,

1740-493: The boundaries of reservations. Language in an 1881 Indian Country bill—referring to "lands to which the original Indian title has never been extinguished"—was struck by its sponsors, who claimed that "there are no such lands in the United States." In 1887, the Dawes Act introduced an allotment policy, whereby communal reservation lands were divided into parcels held in fee simple (and thus alienable) by individual Indians, with

1800-575: The boundary. Prominent American colonials joined with the land speculators in Britain to lobby the government to move the line further west. The colonists' demands were met and the boundary line was adjusted in a series of treaties with the Native Americans. The first two of these treaties were completed in 1768; the Treaty of Fort Stanwix adjusted the border with the Iroquois Confederacy in

1860-474: The common cause and using his influence in the proper quarters. In August 1770, it was decided that Washington should personally make a trip to the western region, where he located and surveyed tracts for himself and military comrades. After some dispute, he was eventually granted a patent letter for tracts of land there. The lands involved were open to Virginians under terms of the Treaty of Lochaber of 1770, except for

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1920-684: The complete extinguishment of aboriginal title in Alabama and Mississippi (1832); Florida and Illinois (1833); Georgia , North Carolina , and Tennessee (1835) [the Treaty of New Echota ]; Indiana (1840); and Ohio (1842). This shift in policy resulted in all tribal lands being either ceded to the federal government or designated as an Indian reservation in Iowa , Minnesota , Texas , and Kansas by 1870; Idaho , Washington , Utah , Oregon , Nevada , Wyoming , Nebraska , and Colorado by 1880; and Montana , Arizona , and New Mexico by 1886. Whereas, "it had taken whites 250 years to purchase

1980-543: The earliest deeds in the Eastern states purport to commemorate such transactions. The Royal Proclamation of 1763 changed matters, reserving for the Crown the exclusive right of preemption, requiring all such purchases to have Royal approval. It was also an attempt to restrain colonial settlement west of the Appalachian Mountains (see map). Forged versions of the Pratt-Yorke opinion of 1757 (in its authentic form,

2040-462: The extinguishment of aboriginal title as well as monetary compensation or the approval of gaming and gambling enterprises . Large-scale compensatory litigation first arose in the 1940s, and possessory litigation in the 1970s. Federal sovereign immunity bars possessory claims against the federal government, although compensatory claims are possible by statute. The Eleventh Amendment bars both possessory and compensatory claims against states , unless

2100-512: The federal government intervenes . The US Supreme Court rejected nearly all legal and equitable affirmative defenses in 1985. However, the Second Circuit —where most remaining possessory claims are pending—has held that laches bars all claims that are "disruptive." Before 1763, the Colonial history of the United States was characterized by private purchases of lands from Indians. Many of

2160-599: The federal government. Congress codified this prohibition in the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1833. The Marshall Court (1801—1835) issued some of the earliest and most influential opinions on the status of aboriginal title in the United States, most of them authored by Chief Justice John Marshall . But, without exception, the remarks of the Court on aboriginal title during this period are dicta . Only one indigenous litigant ever appeared before

2220-593: The first legal recognition of aboriginal title , rights and freedoms. It is recognized in the Constitution Act, 1982 , partly due to direct action by Indigenous peoples of Canada, known as the Constitution Express movement of 1980–1982. The Seven Years' War and its North American theater , the French and Indian War , ended with the 1763 Treaty of Paris . Under the treaty, all French colonial territory west of

2280-455: The fourteenth day of October, one thousand seven hundred and seventy-five, or which may hereafter be made, of or with the Indians, shall be valid unless made under the authority and with the consent of the legislature. N.Y. Const. of 1894 art. 1, § 15 and N.Y. Const. of 1938 art I. § 13 provided: [Purchase of lands of Indians.]-No purchase or contract for the sale of lands in this State, made since

2340-467: The fourteenth day of October, one thousand seven hundred and seventy-five; or which may hereafter be made, of, or with the indians, shall be valid, unless made under the authority, and with the consent of the Legislature. § 13 was repealed on November 6, 1962, by popular vote. The test for the acknowledgement of aboriginal title in the United States is actual, exclusive and continuous use and occupancy for

2400-624: The judicial enforcement of the federal government's fiduciary duty . The rule of construction against extinguishment, even in the face of overlapping land grants, was based on the assumption that Congress would not lightly extinguish due to its " Christian charity ." Land grants themselves therefore do not extinguish aboriginal title, nor Indian usufructuary rights. Furthermore, land grants are interpreted narrowly to avoid overlapping with unextinguished aboriginal title. Extinguishment can be accomplished through res judicata . Extinguishment may also be effected through collateral estoppel following

2460-774: The jurisdictional limits of the British territories of North America, limiting British colonial expansion on the continent. What remained of the Royal Province of New France east of the Great Lakes and the Ottawa River , and south of Rupert's Land , was reorganised under the name "Quebec." The territory northeast of the St. John River on the Labrador coast was reassigned to the Newfoundland Colony . The lands west of Quebec and west of

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2520-477: The land companies, seeing as they had more wealthy backers than the poorer settlers who wanted to settle west in hopes of gaining a fortune. Many colonists disregarded the proclamation line and settled west, which created tension between them and the Native Americans. Pontiac's Rebellion (1763–1766) was a war involving Native American tribes, primarily from the Great Lakes region , the Illinois Country and

2580-478: The lands located two miles (3.2 km) south of Fort Pitt, now known as Pittsburgh. In the United States, the Royal Proclamation of 1763 ended with the American Revolutionary War because Great Britain ceded the land in question to the United States in the Treaty of Paris (1783) . Afterward, the U.S. government faced difficulties preventing frontier violence and eventually adopted policies similar to

2640-777: The line, but not settle past it. Its contour was defined by the headwaters that formed the watershed along the Appalachians. All land with rivers that flowed into the Atlantic was designated for the colonial entities. In contrast, all the land with rivers that flowed into the Mississippi was reserved for the Native American populations. The proclamation outlawed the private purchase of Native American land, which had often created problems. Instead, all future land purchases were to be made by Crown officials "at some public Meeting or Assembly of

2700-452: The power lies with Congress. Extinguishment retroactively validates trespasses and removals of resources from aboriginal lands, and thus bars compensation (either statutory or constitutional) for those encroachments. Since 1790, states have not been able to extinguish aboriginal title. They cannot even foreclose on tribal lands due to the non-payment of taxes. However, extinguishment by state governments before between independence and 1790

2760-643: The process of making it law. The Royal Proclamation continued to govern the cession of Indigenous land in British North America , especially Upper Canada and Rupert's Land . Upper Canada created a platform for treaty-making based on the Royal Proclamation. After loyalists moved into land after Britain's defeat in the American Revolution, the first impetus was created out of necessity. According to historian Colin Calloway, "scholars disagree on whether

2820-477: The proclamation ceased to be a significant source of tension after 1768 since the aforementioned later treaties opened up extensive lands for settlement. Others have argued that colonial resentment of the proclamation contributed to the growing divide between the colonies and the mother country. Some historians say that even though the boundary was pushed west in subsequent treaties, the British government refused to permit new colonial settlements for fear of instigating

2880-498: The proclamation recognized or undermined tribal sovereignty". Some see the Royal Proclamation of 1763 as a "fundamental document" for First Nations land claims and self-government . It is "the first legal recognition by the British Crown of Aboriginal rights " and imposes a fiduciary duty of care on the Crown. The intent and promises made to the natives in the proclamation have been argued to be temporary, only meant to appease

2940-415: The said Indians". British colonials were forbidden to settle on native lands, and colonial officials were forbidden to grant ground or lands without royal approval. Organized land companies asked for land grants, but were denied by King George III. British colonists and land speculators objected to the proclamation boundary since the British government had already assigned land grants to them. Including

3000-414: The sale of lands in this state, made since the fourteenth day of October, one thousand seven hundred and seventy-five, or which may hereafter be made, of or with the Indians in this state, shall be valid, unless made under the authority, and with the consent, of the legislature. N.Y. Const. of 1846 art. I, § 16 provided: [Indian lands.]—No purchase or contract for the sale of lands in this state, made since

3060-456: The sale of lands, made since the fourteenth day of October, in the year of our Lord one thousand seven hundred and seventy-five, or which may hereafter be made with or of the said Indians, within the limits of this State, shall be binding on the said Indians, or deemed valid, unless made under the authority and with the consent of the legislature of this State. N.Y. Const. of 1821 art. VII, § 12 provided: [Indian lands.]—No purchase or contract for

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3120-872: The scope of the settlement may be up for debate. The United States is bound by prior determinations as well. The Grand Canyon National Park Enlargement Act is an example of an act extinguishing aboriginal title. Indian removal policy resulted in the complete extinguishment of aboriginal title in Alabama and Mississippi (1832), Florida and Illinois (1833), Georgia , North Carolina , and Tennessee (1835) [the Treaty of New Echota ], Indiana (1840), and Ohio (1842). Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island in 1978 and Maine in 1980. Similar, but non-statewide, acts extinguished some aboriginal title in Connecticut , Florida , Massachusetts , and New York . The Vermont Supreme Court has held, in actions where aboriginal title

3180-580: The several States, and with the Indian tribes; Relevant federal statutes include: N.Y. Const. of 1777 art. XXXVII provided: And whereas it is of great importance to the safety of this State that peace and amity with the Indians within the same be at all times supported and maintained; and whereas the frauds too often practiced towards the said Indians, in contracts made for their lands, have, in divers instances, been productive of dangerous discontents and animosities: Be it ordained, that no purchases or contracts for

3240-430: The tribe cannot unify its aboriginal title with purchased fee simple to reconstitute " Indian Country " for the purposes of tribal sovereignty in the United States . Similarly, states can tax and exercise criminal jurisdiction in alienated tribal land, whether or not the tribe reacquires it. Nor can Indians tax non-Indians who own land in fee simple otherwise within their jurisdiction. Courts has not been receptive to

3300-542: The view that aboriginal title was converted to fee simple during the rule of other countries (e.g. Russia in Alaska). The Nonintercourse Act does not prohibit leases. The modern test for extinguishment of aboriginal title was most thoroughly explained in United States v. Santa Fe Pacific R. Co. (1941): extinguishment must come from Congress, or a part of the federal government properly delegated by Congress, and must satisfy

3360-436: The wealthy owners of the Ohio company, who protested the line to the governor of Virginia, as they had plans to settle the land to grow the business. Many settlements already existed beyond the proclamation line, some of which had been temporarily evacuated during Pontiac's War , and there were many already granted land claims yet to be settled. For example, George Washington and his Virginia soldiers had been granted lands past

3420-617: Was issued by King George III on 7 October 1763. It followed the Treaty of Paris (1763) , which formally ended the Seven Years' War and transferred French territory in North America to Great Britain . The Proclamation at least temporarily forbade all new settlements west of a line drawn along the Appalachian Mountains , which was delineated as an Indian Reserve . Exclusion from the vast region of Trans-Appalachia created discontent between Britain and colonial land speculators and potential settlers. The proclamation and access to western lands

3480-693: Was one of the first significant areas of dispute between Britain and the colonies and would become a contributing factor leading to the American Revolution . The 1763 proclamation line is more or less similar to the Eastern Continental Divide , extending from Georgia in the south to the divide's northern terminus near the middle of the north border of Pennsylvania, where it intersects the northeasterly St. Lawrence Divide , and extends further through New England . The Royal Proclamation continues to be of legal importance to First Nations in Canada, being

3540-547: Was raised as a defense by criminal defendants, that all aboriginal title in Vermont was extinguished when Vermont became a state. Commentators have criticized these decisions as inconsistent with federal law. Some eastern states argued that the Nonintercourse Act did not apply in the original colonies, or at least not in tribal areas surrounded by settlements. The First and Second Circuits have rejected this view, holding that

3600-439: Was the first Supreme Court decision to acknowledge the doctrine of individual aboriginal title, not held in common by tribes. Individual aboriginal title may be an affirmative defense to crimes such as trespassing on US Forest Service lands. However, a claimant asserting individual aboriginal title must show that his or her ancestors held aboriginal title as individuals . Where tribal land has previously been dispossessed,

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