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103-475: The Narragansett land claim was one of the first litigations of aboriginal title in the United States in the wake of the U.S. Supreme Court's landmark Oneida Indian Nation of New York v. County of Oneida (1974), or Oneida I , decision. The Narragansett claimed a few thousand acres of land in and around Charlestown, Rhode Island , challenging a variety of early 19th century land transfers as violations of

206-643: A Native American gaming enterprise . The Narragansett tribe was "one of the most powerful tribes in New England" before settlers arrived in Rhode Island. The tribe was defeated in King Philip's War in 1675. The Rhode Island legislature passed a " detribalization " law in 1880. The Rhode Island Senate asked the Rhode Island Supreme Court to issue an advisory opinion on the law's constitutionality;

309-846: A Native American gaming enterprise . The tribe purchased 31 additional acres in Charlestown in 1991. After being denied a land use permit, the Narragansett attempted to convey the lands in trust to the Secretary of the Interior under the Indian Reorganization Act of 1934 (which would have the effect of ending state and local jurisdiction). The U.S. Supreme Court ruled in Carcieri v. Salazar (2009) that only tribes that were under federal jurisdiction as of 1934 could do so. Aboriginal title in

412-402: 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

515-501: 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

618-445: 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)

721-560: A Quaker author, with the following account of Atherton's death: Humfray Adderton, who at the trial of Wenlock Christison, did, as it were, bid defiance to Heaven, by saying to Wenlock, 'You pronounce Woes and Judgements, and those that are gone before you pronounced Woes and Judgements; but the Judgements of the Lord God are not upon us yet,' was suddenly surprised: having been, on a certain day, exercising his men with much pomp and ostentation, he

824-401: A duty which he owed to God and to his Country to mete out to the poor creatures, against whom accusations were brought, the punishment, which, in his opinion, they so richly merited." Woodward said that, in his capacity as assistant, Atherton had been instrumental in bringing about the execution of Mrs. Ann Hibbins , a wealthy widow, who was executed for witchcraft on June 19, 1656. Hibbins

927-563: A fall from his horse. He was traveling through Boston Common , on his way home after drilling his troops when his mount collided with a cow. Woodward, aforementioned author of Epitaphs from the Old Burying Ground in Dorchester, said that because of Atherton's persecution of the Quakers, "they believed his horrible death to be God's visitation of wrath." Woodword credits Joseph Besse ,

1030-494: 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,

1133-407: A hatchet.' " The Connecticut settlers demanded land from Uncas in return for their assistance to him. "Trumbull states, 'Mr. Leffingwell obtained nearly the whole township of Norwich for his services.'" Miantinomo's successor, Pessicus , declared war against Uncas and the colonies fined him 2000 fathoms of wampum for causing the hostilities, which he was unable to pay." Humphrey Atherton

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1236-565: 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

1339-581: A judgment on him." Humphrey Atherton, whose wife, Mary died in 1672. is interred at the Dorchester North Burying Place in Boston. Engraved upon his tombstone are the following words: Here lies our Captain & Major of Suffolk was withall; A godly magistrate was he, and Major General; Two troop horse with him here comes, such worth his love did crave Two companies of foot also mourning march to his grave, Let all that read be sure to keep

1442-503: A royal charter for Rhode Island in 1643 or 1644. The court next reviews a 1644 document by which the Naragansett's purported to "submit, subject, and give over ourselves, peoples, lands, rights, inheritances, and possessions whatsoever, in ourselves and our heires successively forever, unto the protection, care and government" of the King of England. The court did not claim this document affected

1545-515: A share in what became Milton, Massachusetts . The General Court awarded 500 acres (2.0 km ) to him for his public service, but because some of it impeded the town on Hadley, Massachusetts , he was given a new grant that had an additional 200 acres (0.81 km ). Since he had represented Springfield in the General Court, he probably owned land in Springfield as well. When he died, his estate

1648-533: A title not even belonging to the Indians, though underlying the Indian title. Regulation is not appropriation. Finally, the court opined that the act might even have been valid if the Narragansett's were federally recognized: Be all that as it may, however, it seems to be recognized that a time may arrive when a tribe of Indians may become so degraded or reduced in numbers as to lose the power of self-government, and that then

1751-416: A tribal right of occupancy is claimed." The Narragansett prevailed despite the heightened standard of review for a Rule 12(f) motion to strike, exceeding the standard the tribe would have had to carry at trial or on summary judgement. The tribe did not move to strike the defendant's claim that the United States was a necessary party (i.e., an argument that the Narragansett could not proceed without joining

1854-465: A very active public life having power and taking part in the law making, enforcing and interpreting affairs of the colony. Subsequent to his acceptance as a freeman, in 1638, he was frequently selectman or treasurer , and for several years a member of the Court of Assistants which gave him a say in the appointment of governors as well as judicial power in criminal and civil matters. In 1638 and 1639–41 he

1957-449: Is a record of Nathaniel Wales having voyaged on the James . Wales referred to Humphrey Atherton as his "brother-in-law" in his will, so it has been assumed that Atherton's wife, Mary, was Wales' sister. However, the term may have been used because Atherton's daughter, Isabel, was married to Nathaniel Wales, Jr. The identity of his wife is disputed. Some sources say Mary Kennion. Atherton had

2060-540: 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

2163-514: Is hoped that Gorton's complaint of his treatment was exaggerated, for he said, in passing through Dorchester. 'A large concourse of persons assembled with several ministers to witness the passage of the troops, and the prisoners were stationed apart and volleys of musketry fired over their heads in token of victory.' Harlow Elliot Woodword, in Epitaphs from the Old Burying Ground in Dorchester, said that Atherton had believed in witches and "felt it to be

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2266-771: The Nonintercourse Act , suing both the state and private land owners. Judge Raymond James Pettine of the United States District Court for the District of Rhode Island granted the Narragansett 's motion to strike the state's affirmative defenses and denied the state's necessary party motion and motion to dismiss . Altogether, the court rejected the state's defenses of: sovereign immunity , laches , statute of limitations / adverse possession , estoppel by sale, operation of state law, and public policy . After

2369-460: The Supremacy Clause ... that state statutes cannot supersede federally created rights has been applied with especial vigor to the question of Indian title as a result of the federal government's 'unique obligation toward the Indians." Thus, the court held that the state's attempt to disband the tribe in 1880 and the various state services provided to the tribe were irrelevant. The court held that

2472-587: 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

2575-649: 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

2678-569: 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. Atherton purchase It is unclear where and when Atherton

2781-735: The Atherton Family of New England in National Genealogical Society Quarterly, Volume 1, Issue 4. In the National Genealogical Society Quarterly, Volume 60, some of Humphrey Atherton's descendants are included in the Belcher Genealogy. In the same volume, Samuel Atherton's ancestry was traced to Humphrey Atherton. William B. Task claimed descent from Atherton in the 1899 New England Historical Genealogical Register. Atherton continued to be revered by his community after his death. Thirty years later and Thomas Maule

2884-526: 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

2987-656: 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

3090-543: The Courthouse, the place where he had been active in sentencing the innocent to death, his blood ran through the floor, exhibiting to the spectators a shocking instance of the Divine vengeance against a daring and hardened persecutor; that made a fearful example of that divine judgment, which, when forewarned of, he had openly despised, and treated with disdain. Longfellow repeated this sentiment in his account of Atherton's death in

3193-682: 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

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3296-608: The Great Swamp Fight; the less celebrated tribe adopting and being known thenceforward by the more famous name of their once powerful neighbors, the Narragansetts. Next, the court reviewed the power of a sachem to conclude a land conveyance, remarking that they exercised "absolute monarchie over the people." The court next quoted extensively from Chief Justice John Marshall 's opinion in Johnson v. McIntosh (1823). By comparison,

3399-492: 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),

3502-468: The Narragansett's as punishment from some "injuries alleged." The Atherton purchase was re-recited in 1662. A 40-year dispute between Rhode Island and Connecticut followed over whose territory (and royal charter) included the Narragansett lands. Due to the expenses of this dispute, the opinion claims, the Rhode Island legislature in 1707 authorized a survey to identify vacant Naraggansett lands. In 1709, Rhode Island obtained some sort of conveyance to nearly all

3605-647: The Narragansett's claim, the Act required the Secretary of the Interior to acquire approximately 900 acres of privately held land for the Narragansett and required the state to convey certain other publicly held lands to the Narragansett Corporation. The Act also created a $ 3.5 million settlement fund, funded by a federal appropriation. The Act also required the Governor to negotiate for the tribe an option to purchase additional privately held lands, exercisable by

3708-527: The Narragansett's land title. The court reviews the text of the royal charter, rebutting the argument that the charter was "evidence that the crown recognized the Indian title as paramount to their own." The court details the opposition of Williams and Rhode Island to the 1659 Atherton purchase from the Narragansett (through the sachem Coginaquand ) by settlers from Connecticut. The same group of settlers in September 1660 demanded and received another tract from

3811-637: The Non-Intercourse Act"; the court held just the opposite. Next, the court held that it was irrelevant that the tribe was incorporated under state law and that the tribe was not federally recognized. Finally, the court held that the proviso of the Nonintercourse Acts between 1793 and 1802—relating to "Indians living on lands surrounded by settlements"—holding that the proviso was only "addressed to transactions by individual Indians living in 'white' settlements and has no application to land to which

3914-481: The Secretary for the tribe, with the option payment not to exceed 5% of the fair market value of the lands and the total price not to exceed the amount of the settlement fund. That Act extinguished all aboriginal title in Rhode Island, including title held by other tribes. Thus, the Act extinguished the claim of the Seaconke Wampanoag Tribe , even though they were in no way compensated by the Act. The terms of

4017-655: The Supreme Court's decision in Idaho v. Coeur d'Alene Tribe of Idaho (1997) that Eleventh Amendment sovereign immunity bars any action that would have the effect of quieting title against a U.S. state . The parties reached a settlement on February 28, 1978, which—because it extinguished the tribe's aboriginal title—required Congressional legislation. Congress passed the Rhode Island Claims Settlement Act (RICSA) on September 30, 1978. In exchange for extinguishing

4120-540: 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 a "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions,

4223-426: The United States to the suit). However, the court rejected the defendant's necessary party motion under Rule 19(a), holding that the United States was a "necessary," but not an "indispensable" party. Thus, although the federal government could have brought the tribe's claim on its behalf, the tribe was also able to bring the claim on its own. However, the court did recognize that "all parties to this litigation to welcome

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4326-559: 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,

4429-553: The agreement extended state civil and criminal jurisdiction to the settlement lands. No state, federal, or local property tax was to be assessed on the lands. The Narragansett obtained federal recognition in 1983. After the passage of the Indian Gaming Regulatory Act (1988), the RICSA was amended to render the lands non-gaming eligible in 1996. As of 2005, the Narragansett have been unsuccessful in their efforts to establish

4532-493: 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

4635-790: The colonists had sided with the Mohegans in the Pequot War , which wiped out most of the Pequot people. By the early 1640s tensions were building between the Mohegans and the Narragansetts . Ebenezer Clapp, in The History of Dorchester also said "In 1645, the New England Colonies met by representatives to consult upon the Indian problem, and appointed a Council of War; Capt. Miles Standish , of Plymouth,

4738-633: The commissioners of the Four Colonies. In 1658, Atherton came into contact with Native Americans again when he was appointed by the General Court to the post of Superintendent of Indian Affairs, overseeing the praying Indians ; Nipmuck Indians who had been converted to Christianity by John Eliot . He held that position until his death. "Though a terror to warlike Indians, yet he was the trusted friend of all who were well disposed, helping on their education and Christianizing, and guarding their rights, so that he had immense personal influence with them, and

4841-732: 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

4944-599: The consolidated cases, Judge Pettine rejected the defendant's motion to dismiss for lack of subject-matter jurisdiction on the basis of the Eleventh Amendment to the United States Constitution . Pettine found that the tribe's claims fell with the Ex parte Young (1908) exception to state sovereign immunity, citing Supreme Court precedents involving suits over possession of land. The court distinguished "suits seeking

5047-401: 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

5150-421: The court claims, Roger Williams "denied the justice of the white man's laws as to Indian lands [which] very largely ignored the right of the Indian." The court quoted with approval Williams' claim that the land of Rhode Island was not "purchased or obtained" but rather obtained from " Cannonicus but by gift." Only out of a desire to avoid conflicts with neighboring colonies, the court proceeds, did Williams obtain

5253-419: The court remarks: Some of the reasoning in the foregoing opinion seems to us faulty and not well grounded. ... It is a very strained interpretation to say that the power to regulate commerce with the Indian tribes, even in combination with the treaty-making power, carries with it the power to appropriate title to land belonging to the states, an ultimate title, resembling in some respects a reversionary interest;

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5356-405: The damnation of Atherton by the accused. Ebenezer Clapp, in The History of Dorchester said of Atherton, "He had great experience and skill in the treatment of the Indians, with whom his public duties brought him in frequent contact. He manifested much humanity and sympathy for their ignorant and degraded condition, but exercised great energy and decision of character when necessary." In 1637

5459-497: The decision, Congress settled the claim with the Rhode Island Claims Settlement Act (RICSA), the first of many Indian Land Claims Settlements , extinguishing all aboriginal title in Rhode Island in exchange for $ 3.5 million. The Narragansett claim was "the first of the eastern land claims to be settled." The Narragansett received federal recognition in 1983 and have unsuccessfully attempted to establish

5562-411: The defendant's purported affirmative defenses would not defeat the tribe's claim if it proved the elements of a prima facie case; in other words, they were not affirmative defenses. The court also rejected the defendant's attempts to rebut the elements of the tribe's prima facie case. First, the court rejected the state's argument that "aboriginal title alone does not mean a title having the protection of

5665-613: The defendants would violate the Nonintercourse Act . Citing Joint Tribal Council of the Passamaquoddy Tribe v. Morton (1st Cir. 1975) and other various Supreme Court decisions, the court held that the Nonintercourse Act applied to the lands in question. The court rejected all the defendant's affirmative defenses: laches, statute of limitations/adverse possession, estoppel by sale, operation of state law, and public policy. The court noted that: "The broad principle dictated by

5768-591: 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,

5871-475: The ensuing war, Miantinomo was captured and brought to the commissioners of the Four United Colonies at Hartford . "After obtaining him as a captive, they could find no excuse for putting him to death; and, to avoid the responsibility, they referred his case for decision to a convention of ministers in Boston; [sic] Winthrop states, 'Miantinomo was killed near Hartford by a blow on the back of his head with

5974-462: 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

6077-930: The faith as he has done With Christ he lives now crowned, his name was Humphrey Atherton. Humphrey Atherton and his wife, Mary had eleven children. They had five sons; Jonathan, their first born, was a mariner. Increase, also a mariner, died at sea, aged 31, on the Friezland, whilst in the service of the Guiney Company. Hope Atherton , was minister of Hadley, Massachusetts and married Sarah Hollister. Consider, married Ann Anable. Watching, married Elizabeth Rigbee. They had six daughters, Elizabeth Catherine “Isabel” married Timothy Mather, followed by Nathaniel Wales Jr. and then William Weekes. Margaret married James Trowbridge. Mary married William Billings and then Joseph Weeks. Rest married Obadiah Swift. Thankful married Thomas Bird of Dorchester. Patience, married Isaac Humphrey. Among

6180-630: The family genealogies that the Humphrey Atherton family are included in are The Trowbridge genealogy: History of the Trowbridge family in America by Francis Bacon Trowbridge. The History of the Dorchester Pope Family: 1634–1888, by Charles Henry Pope and Hall Ancestry, by Charles Samuel Hall. George Caster Martin traced his ancestry to Atherton in his article Humphrey Atherton: Founder of

6283-406: 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

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6386-490: 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

6489-401: The final scene of John Endicott . In the scene Governor Endicott , while speaking to Richard Bellingham, asks if it is true that Humphrey Atherton is dead. Bellingham confirms that he is and adds, "His horse took fright, and threw him to the ground, so that his brains were dashed about the street." Endicott responds, "I am not superstitions, Bellingham, and yet I tremble lest it may have been

6592-405: 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

6695-413: 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

6798-399: The judgment of God coming on Major-general Adderton, but as to their putting any more Quakers to death after they had passed sentence on him." Henry Wadsworth Longfellow recreated the Christison trial in his play John Endicott which included the damnation of Atherton by the accused. Henry Wadsworth Longfellow recreated the Christison trial in his play [1] John Endicott which included

6901-624: 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

7004-445: The land when the Natives defaulted on a loan. In 1660, commissioners of the Four Colonies, of whom John Winthrop, Jr. was one, transferred ownership of the mortgage of Pessicus's land to the Atherton Trading Company for 735 fathoms of wampum. The Company then foreclosed on the mortgage. The land included the Narragansett property within the bounds of Rhode Island. Rhode Island found this transference of land to be illegal and prevented

7107-413: The legislature modified the prohibition to require the approval of a certain tribal counsel and a committee of the legislature in 1779. Controversial conveyances occurred in 1800, 1803, 1811, 1813, and 1818—plus "many others." From 1718 to 1840 various laws were passed exempting the Narragansett's from various forms of taxation, barring most suits against Narragansetts, and so on. In 1840 an Indian commission

7210-545: The local law must from necessity be extended over them. ... Even if the Narragansetts had ever been recognized by the United States as a tribe of Indians, it would seem as if the state would be authorized, by the necessities of the case, to take action. Two lawsuits by the Narragansett against the State of Rhode Island (C.A. No. 750005) and private landowners (C.A. No. 750006) were consolidated in front of Judge Pettine. The tribe claimed aboriginal title to lands in and around Charlestown, Rhode Island , and that any title claimed by

7313-463: The name Atherton is prominent there. However, genealogist Robert Charles Anderson, in The Great Migration , states that this "does not come close to constituting proof of origin." The date of 1608 is sometimes given as his date of birth because Edmund Atherton of Wigan Lancashire, England died in 1612 leaving, as his heir, a four-year-old son named Humphrey. However, Duane Hamilton Hurd, in History of Norfolk County, Massachusetts stated that Atherton

7416-484: The opinion summarizes much of the tribe's land and other dealings with the state up until that point. Additionally, the Senate certified the questions of: whether certain quitclaim deeds executed by the tribe were valid; whether the state could acquire valid title under the 1880 law; whether the tribe was abolished by the law; and whether those to whom the state conveyed title under the 1880 law had valid title. The court upheld

7519-452: 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

7622-680: The return of specific property ... from suits asking money damages payable out of the public treasury." Because the tribes alleged that the state's actions violated the Indian Commerce Clause and Supremacy Clause (via the Nonintercourse Act) of the Constitution, the tribe's claim was allowed under the Ex parte Young doctrine. The court did not reach the tribe's alternative argument that the state had consented to suit. Narragansett II preceded

7725-587: The right of the magistrates to take the lands of the Indians with out compensating the owners". The United Colonies obtained Narragansett lands within the boundaries of Rhode Island by putting in motion a series of events that began with their promise of aid to the Mohegan Sachem , Uncas , whom they had supported during the Pequot War, if he declared war against the Narragansett Sachem, Miantinomo . During

7828-414: 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

7931-456: 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

8034-549: The sale of the land for several years. The company, which changed its name to "Proprietors of the Narragansett Country," eventually did sell 5,000 acres (20 km ) of the land to Huguenot immigrants who began a colony there called Frenchtown. The Huguenots lost the land when, in 1688, a Royal Commission determined the Atherton claim to be illegal. Humphrey Atherton died, September 16, 1661, from head injuries sustained in

8137-872: 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

8240-531: 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

8343-468: The statute and answered all the questions in the affirmative. The court began with an attack upon the Narragansett's status as indigenous: The people in Rhode Island, in our day, calling themselves Narragansetts, are, properly speaking, not Narragansetts at all, but, at best, only a decayed remnant of the Niantics, a tribe tributary to the Narragansetts, with whom the survivors of the latter took refuge after

8446-430: 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

8549-406: The vacant lands, which were within the area claimed by Connecticut. The opinion next reviews the Rhode Island statutes which prohibited the acquisition of Indian lands without the consent of the colony. Two such ratifications occurred in 1659 and 1682. From 1713 to 1773, a variety of legislation was passed regarding the lands of Ninigret . Due to the succession disputes following Ninigret's death,

8652-542: 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

8755-405: The voluntary intervention of the United States, and it therefore extends a standing invitation to the United States to do so." The defendants also filed a motion to dismiss, claiming the suit was a nonjusticiable political question , which the court denied. Citing Baker v. Carr (1962), the court found that the action did not meet the elements of a political question. In a second opinion for

8858-565: Was 36 years old when he died in 1661. On the other hand, Charles Samuel Hall in Hall Ancestry , pointed out that when Atherton was made freeman and was granted property in 1638, "he must at that time reached his majority." Charles H. Atherton, said that Humphrey Atherton, his wife and three young children arrived at the colony in the ship James , August 7, 1635, but there is no record of this. He further said that Atherton and his wife were each about 15 years old when they were married. There

8961-479: Was a governor's assistant in the General Court, and in 1653, he succeeded Daniel Denison as Speaker of the House, leader of the Court of Deputies , which was the lower house of the General Court, representing Springfield, Massachusetts. He was also "long a justice of the peace , and solemnized many marriages". One of the marriages over which he officiated was that of Myles Standish, Jr. and Sarah Winslow. Atherton

9064-607: Was a member of the Ancient and Honorable Artillery Company and he organized the first trained band ( militia ) in Dorchester. As Major-General in the Suffolk Regiment, he was the senior military officer in New England. which included the responsibilities of subduing and controlling Native Americans and apprehending criminals, such as those accused of heresy. In 1644 he [Atherton] was sent, with Captains Johnson and Cook, to Narragansett to arrest and try Samuel Gorton for heresy. It

9167-477: Was a result of this process. The act called for the purchase of all remaining tribal lands and reservations, dissolved the tribe, and ended all law's conferring special legal status on Narragansetts. The opinion briefly considers the mentions of Indians in the Articles of Confederation and United States Constitution and finds no obstacle to the 1880 act in those texts of the U.S. Supreme Court's jurisprudence up to that time. Regarding Worcester v. Georgia (1832),

9270-503: Was a successful treaty-maker". In 1656, he was appointed Major-General , becoming the Chief Military Officer in New England, replacing Robert Sedgwick . He was the fifth holder of this rank. His predecessors were Thomas Dudley , John Endicott , Edward Gibbons and Robert Sedgwick . Humphrey Atherton was a successful land speculator. The land he owned in Dorchester included a large portion of South Boston. He also owned

9373-421: Was apparent that the Narragansett tribe had become extinct in all but name. Its members had even ceased to be red men, for their complexions had been darkened by the plentiful infusion of negro blood, or bleached by the admixture of blood from Caucasian veins. In 1852, a committee was formed to consider proposals to terminate the Narragansett's tribal status, which was suggested in 1857, 1859, and 1866. The 1880 law

9476-416: Was appointed whose responsibilities included overseeing further conveyances of land. According to the court: The hold of the Narragansetts, even in civil matters, grew more and more feeble, and they gradually became more and more dependent upon the state, until their moribund condition as a tribe became apparent even to themselves. ... For at least 30 years before the passage of [the 1880 law under review], it

9579-451: Was assistant governor at the time, and at her hanging he was said to have remarked, "She hangs there like a flag." The Quakers understood this comment to be an insulting boast. There was the case of Wenlock Christison , a Quaker who had repeatedly returned to Massachusetts despite banishment, whose trial in May, 1661 put an end to the execution of Quakers. He was sentenced to death, but the law

9682-418: Was born. It is presumed he came from Lancashire, England . He was active in the governance of the colony, taking part in the acquisition of Native American lands, the persecution of Quakers , and the apprehension and convictions of heretics . His accidental death was seen by the Quakers as a punishment from God for his persecution of them, an idea repeated in a play by Henry Wadsworth Longfellow . He

9785-566: Was chairman. Mason of Connecticut, Leverett and Atherton of Massachusetts, were the other councilors". The New England colonies, with the exception of Rhode Island , formed a confederation called "The Four United Colonies of New England" . Rhode Island, according to The Proceedings of the Rhode Island Historical Society , 1881–1882, was excluded, not for reasons of religious differences, but because its founder, Roger Williams , had been banished from Massachusetts "for denying

9888-632: Was changed soon after, and he was not executed. He was the last Quaker to be sentenced to death in Massachusetts. The Quakers believed that during an altercation between the accused and Atherton at the trial, Christison prophesied the outcome of his trial as well as the circumstances of Atherton's untimely death. Quaker writer George Bishop wrote, "Yea, Wenlock Christison, though they did not put him to death, yet they sentenced him to die, so that their cruel purposes were nevertheless. I cannot forbear to mention what he spoke, being so prophetical, not only as to

9991-483: Was later fictionalized in Nathaniel Hawthorne 's The Scarlet Letter . In that book she was depicted as the sister of Governor Bellingham . Atherton was involved in the persecution of Quakers and there are two incidents in particular that the Quakers wrote about in relationship to Atherton. First, the case of Mary Dyer , a Quaker who was executed in 1660 after returning to Boston despite banishment. Atherton

10094-492: Was one of the most successful land speculators in the New England colonies. He and his wife, Mary, had a number of children and several New England families have traced their ancestry to them. He is interred at Dorchester North Burying Ground , one of the oldest cemeteries in New England. Humphrey Atherton's date and place of birth are uncertain. It has been presumed by some that he was born in Lancashire, England, because

10197-486: 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

10300-403: Was returning home in the evening, near the place where they usually loosed the Quakers from the cart, after they had whipped them, his horse, suddenly affrighted, threw him with such violence, that he instantly died; his eyes being dashed out of his head, and his brains coming out of his nose, his tongue hanging out at his mouth, and the blood running out at his ears: Being taken up and brought into

10403-505: Was sent by the commissioners of the Four Colonies, with twenty armed men, to enforce the payment. As stated in Arnold's history of Rhode Island (vol. i., p. 199), 'Atherton forced his way, pistol in hand, into the wigwam , and, seizing the Sachem by the hair, dragged him out, threatening instant death if any resistance was offered.' The debt was settled by Pessicus giving a mortgage of all his lands to

10506-439: 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,

10609-527: Was worth 900 pounds, not including much of his land. Atherton "played a key role in fighting and removing Indians from land he later owned." In 1659, he and some friends, including Connecticut Governor, John Winthrop, Jr. , made some purchases of land from Native Americans on the western side of Narragansett Bay for which Rhode Island had claimed. The group, referred to as the Atherton Trading Company , circumvented Rhode Island's law by acquiring

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