MOHEGAN TRIBE, Plaintiff-Appeli V. STATE OF CONNECTICUT, Defendant-Appellant. No. 73, Docket 80-7348. United States Court of Appea Argued Sept. 12, 1980. Decided Dec. 17, 1980. Indian tribe brought suit again. State of Connecticut for possession alleging that the land in question was a in the coverage of the nonintercourse ute and its predecessors. The U MOHEGAN TRIBE v. STATE OF CONNECTICUT States District Court for the District of "Within the bounds of the United States" language of 1793, 1796, 1799, and 1802 Nonintercourse statutes, which provided that no purchase of Indian lands within the bounds of the United States would be valid unless accomplished by a federal treaty, was not merely meant to exclude land transactions with tribes residing outside of the United States that claimed land within the United States. Act March 1, 1793, § 1 et seq., 1 Stat. 329; Act May 19, 1796, § 1 et seq., 1 Stat. 469; Act March 3, 1799, § 1 et seq., 1 Stat. 743; Act March 30, 1802, § 1 et seq., 2 Stat. 139; Act June 30, 1834, §§ 1 et seq., 29, 4 Stat. 729. 613 cannot be held to contradict the more specific language contained in the body of the act. 5. Indians 3, 6 Indian legislation and treaties cannot be interpreted in isolation but must be read in light of the common notions of the day and the assumptions of those who drafted them. 6. Statutes 214, 217 Court should never ignore strong extrinsic evidence which may serve to explain the meaning of statutory enactments, particularly when the statutes are deeply embedded in American history. 7. Statutes 219(3) Longstanding, contemporaneous executive and administrative interpretation by those entrusted with the enforcement of ambiguous legislation may shed light upon an appropriate construction of the statutory language. 8. Indians 15(2) 9. Indians 33 Nonintercourse statute's "surrounded by settlements" exception was not intended to exempt from the various provisions of the Trade and Intercourse Acts transactions, including those involving land, with Indians residing in the settled areas of the eastern states; rather, the exception was not meant to apply to Indian land transactions at all. 25 U.S.C.A. § 177. 614 638 FEDERAL REPORTER, 2d SERIES Francis J. MacGregor, Asst. Atty. Gen., Hartford, Conn. (Carl R. Ajello, Atty. Gen., Gerard J. Dowling, Asst. Atty. Gen., Hartford, Conn., of counsel), for defendant-appellant. Jerome M. Griner, West Hartford, Conn., for plaintiff-appellee. Richard S. Cohen, Atty. Gen. of the State of Maine, Augusta, Me. (James D. St. Clair, William F. Lee, Hale & Dorr, Boston, Mass., of counsel), Special Counsel to the State of Maine as amicus curiae. Thomas N. Tureen, Portland, Maine, Richard B. Collins, Boulder, Colo., Native American Rights Fund, counsel for Passamaquoddy Tribe and the Penobscot Nation as amicus curiae. Before FEINBERG, Chief Judge, and LUMBARD and OAKES, Circuit Judges. LUMBARD, Circuit Judge: [1] This appeal requires us to decide whether the Nonintercourse statute,' which, since 1790, has prohibited the sale of Indian land unless conveyed by a treaty approved by the federal government applies to land throughout the United States. The appeal arises out of a suit brought against the State of Connecticut in the District Court for Connecticut by the Mohegan Tribe of Indians to regain possession of some 2,500 acres of land in the Town of Montville, Connecticut. In its defense, the State of 1. The statute is presently contained in 25 U.S.C. § 177. Its history is more fully traced below. 2. See, e. g.. Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (2d Cir. 1972), rev'd 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974), on remand 434 F.Supp. 527 (N.D.N.Y. 1977); Mashpee Tribe v Town of Mashpee, 447 F.Supp. 940 (D.Mass. 1978), aff'd sub nom. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.), cert. denied, 444 U.S. 866, 100 S.Ct. 138, 62 L.Ed.2d 90 (1979); Schaghticoke Connecticut filed a motion to dismiss the suit on the ground that the Nonintercourse statute was intended to apply only to land in "Indian country" and thus did not protect the land at issue here. Judge Blumenfeld denied the State's motion, holding that the statute was meant to apply to Indian lands throughout the United States. Mohegan Tribe v. State of Connecticut, 483 F.Supp. 597 (D.Conn.1980). At the State's request, Judge Blumenfeld certified the question of the statute's geographic applicability for appeal pursuant to 28 U.S.C. § 1292(b), and we consented to hear it. We find ourselves in substantial agreement with the reasoning of the district court and therefore affirm. In the past few years numerous suits have been brought by Indian tribes still residing in the eastern parts of the United States. These tribes have asserted claims to large tracts of land in the East, thereby throwing into uncertainty the validity of land titles throughout the area. These suits have been based upon the claim, after a century and a half of occupation by non-Indians, that the states in the East entered into treaties with and purchased land from Indian tribes after the passage of the Nonintercourse statute, which by its terms apparently forbade such transactions without the participation of the federal government. To date, the Indians have been largely successful in their legal battles regarding their claims to the eastern lands. Defenses based upon state Tribe of Indians v. Kent School Corp., 423 F.Supp. 780 (D.Conn.1976); Narragansett Tribe of Indians v. Southern Rhode Island Land Development Corp., 418 F.Supp. 798 (D.R.1.1976); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F.Supp. 649 (D.Me.1975): aff'd, 528 F.2d 370 (1st Cir. 1975). these suits have resulted in settlements authorized by Congress. This is true of the Rhode Island claims litigated in Narragansett, and, quite recently, of the Maine claims at issue in Passamaquoddy. Some of MOHEGAN TRIBE v. STATE OF CONNECTICUT adverse possession laws and state statutes In these suits, defendant 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 5 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. To determine the question of the geographic applicability of the Nonintercourse statute, however, it is necessary to trace the history of the Indian statutes and relevant aspects of Indian land tenure in this country. I. HISTORY OF INDIAN In the Royal Proclamation of 1763, the 3. See, e. g., Oneida, supra note 2, 434 F.Supp. at 541-44; Schaghticoke, supra, note 2, 423 F.Supp. at 783-85; Narragansett, supra, note 2, 418 F.Supp. at 803-06. In this suit, however, the State has asserted a defense based upon the "federal common law of laches." That issue is not before us on this appeal, and therefore we express no opinion on its validity. 4. See, e. g., Mashpee, supra, note 2. 615 "grant Warrants of Survey, or pass Patents" for land in the American territory resided solely in the Crown and not in the Governors or Commanders in Chief of the Colonies. The lands were "reserved to the Indians" unless the sovereign was to decide otherwise. 1 Laws U.S. 443-48.7 Moreover, the Proclamation, for apparently the first time, established a boundary line between the Indian territory or "Indian country" and the lands of the colonists. Trade which occurred beyond the line could only be conducted with the consent of the Crown. At the same time, land grants throughout the American territories were solely within the authority of the sovereign: grants "upon any Lands whatever, which, not having been ceded to or purchased by us as aforesaid, are reserved to the said Indians, or any of them." Id. Thus, the policy of the Royal Proclamation was to demarcate an "Indian country" within which trading could only be conducted with the approval of the Crown, and to establish that all grants of land from the Indians would be valid only with the approval of the sovereign. During the Revolution and prior to the Articles of Confederation, the Continental Congress created a Department of Indian Affairs in 1775. The jurisdiction of the Department was divided into three areas, again all lying along the border of so-called "Indian country." 1 Laws U.S. 597. It was not until after the adoption of the Articles of Confederation in 1781, however, that the policy of the colonies toward Indian trade and, in particular, toward alienation of Indian lands was codified. First it is essential to note that Article IX of the Articles of 5. Passamaquoddy, supra, note 2. 6. Bottomly v. Passamaquoddy Tribe, 599 F.2d 1061 (1st Cir. 1979). 7. The Proclamation is reprinted in H. Commager, Documents of American History 47-50 (8th ed. 1968). 616 638 FEDERAL REPORTER, 2d SERIES Confederation gave the central government exclusive power over Indian affairs with the limitation that such power could not be exercised in such a manner as to infringe upon the "legislative right" of any state. Thus, in the Resolve of 1783, 1 Laws U.S. 607-08, Congress affirmed the prior policy of the Royal Proclamation of 1763 by establishing that all land transactions with the Indians would be invalid unless approved by the federal government, but it limited the effect of the Resolve to lands "without the limits or jurisdiction" of the states. Id. Federal policy during the Confederation thus continued the requirement that dealings with the Indians respecting land sales would only be valid if accomplished with the authority and approval of the central government. However, due to the division of authority between the states and the central government as established in the Articles of Confederation, federal authority was limited to transactions with Indians outside the "limits or jurisdiction" of the states. On this point the Resolve of 1783 specifically referred to the division of powers established in the Articles of Confederation. See id. The limitations on federal authority to deal with Indian affairs contained in Article IX of the Articles of Confederation created uncertainty over the relative spheres of federal and state authority and were removed in the Constitution. Instead, the Constitution granted Congress the authority to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." U.S.Const. art. I, § 8, cl. 3. Thus, Congress was granted plenary authority to regulate trade with the Indian tribes throughout the United States.8 In 1790, Congress enacted the first of the Indian Trade and Intercourse Acts. Act of July 22, 1790, ch. 33, 1 Stat. 137 ("1790 Act"). The majority of sections of the Act established a system of licensing for trade with the Indians and imposed federal authority over crimes committed on Indian property. Section 4 of the Act contained the first Nonintercourse statute: And be it enacted and declared, That no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person, or persons, or to any state, whether having the right of pre-emption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States. The statute thus continued the policy of placing authority to extinguish Indian land rights in the sovereign. In order to appreciate the meaning of the first Nonintercourse statute, the peculiar nature of Indian land tenure in the United States must be noted. In accordance with the "right of discovery" of the European settlers, native Indians found in this courtry were granted the "right of occupancy" to their lands. That is, the natives were allowed to remain upon their lands, but their freedom to alienate those lands was restricted. The land could be sold only to the European settlers or the governmental authority representing those settlers. This would prevent, for example, Indians from selling their lands to another foreign government, hostile to the settlers. Thus, while the Indians retained the "right of occupancy," the settlers retained the "fee 9. This history is best described in the early opinion, by Chief Justice Marshall, in Johnson: v. M'Intosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 6 (1823) and in the more recent opinion by Jus tice White in Oneida Indian Nation v. County G Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed 2d 73 (1974). |