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R.R. Co., 119 U.S. 55 (1886); Beecher v. Wetherby, 95 U.S. 525 (1877); Johnson v. M'Intosh, 21 U.S. (8 wheat.) 543 (1823);

United States v. Gemmill, 535 F.2d 1145, 1147 (9th Cir.)

cert. denied, 429 U.S. 982 (1976) ("... when the Government clearly intends to extinguish Indian title the courts will not inquire into the means or propriety of the action"); United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1031 (D.Alaska 1977) ("Tee-Hit-Ton and Santa Fe establish that Congress has plenary power over aboriginal use and occupancy and claims derived therefrom and may extinguish such occupancy rights and derivative claims in any manner it chooses"); Edwardsen v. Morton, 369 F. Supp. 1359, 1365 n.12 (D.D.C. 1973) ("Whether or not the Court agrees with [plaintiff) on the relative fairness of the [Alaska Native Claims Settlement] Act is, however, immaterial since the settlement incorporated in the Act represents a political judgment with which this Court may not interfere").

B.

Congress can clear the titles to lands that are
clouded by aboriginal title claims either (1) by
now approving, as contemplated by the Nonintercourse
Act, transfers of the lands made by the tribes in
the 18th and 19th centuries, or (2) by extinguish-
ing such aboriginal title claims effective as of
the dates of the original transfers.

As previously noted, the gravamen of many of the

Nonintercourse Act claims is that in the 18th and 19th centuries the tribes transferred their aboriginal title lands, that

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such transfers were not approved by Congress in accordance
with the Nonintercourse Act, and that, as a result, the tribes
still retain aboriginal title and are therefore entitled to
the present use and occupancy of those lands. To deal with
these claims in a manner that would resolve any doubt about

the status of the titles of present day landowners affected by
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the claims, Congress should enact legislation that provides
clear congressional approval of the original transfers.

To

avoid any possible doubt on whether such approval constitutes an extinguishment of the aboriginal title, the legislation should also contain a clear statement that Congress intends

17 It is possible that past actions and inactions of the federal government and the Congress may have had the effect of ratifying the transfers or of extinguishing the aboriginal title. The decision of the First Circuit Court of Appeals in Passamaquoddy v. Morton specifically stated that the court did not intend to "foreclose consideration of whether Congress . should be deemed in some manner ... to have ratified the Tribe's land transactions." 528 F.2d 370, 380-81 (1st Cir. 1975). Other courts have likewise stated that the land titles derived from transfers by Indian tribes and long maintained with the approval of the United States government should be upheld as not in contravention of the Nonintercourse Act. See United States v. National Gypsum Co., 141 F.2d 859, 869 72d Cir. 1944); accord, Seneca Nation of Indians v. United States 173 Ct. Cl. 912 (1965). While past actions of the federal government in purchasing land from the non-Indian landowners for national parks, military bases, highway construction, and other federal facilities, and in providing financial assistance under various federal programs to the non-Indian landowners, may constitute sufficient federal approval under the Nonintercourse Act, any doubts on this matter should be resolved by legislation specifically approving the prior transfers by the Indian tribes and indicating that such approval is intended to extinguish the aboriginal title as of the dates of the original transfers.

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such approval to constitute an extinguishment of any aboriginal title effective as of the dates of the original transfers.

1. Congress can validate an 18th or 19th
century transfer of aboriginal title
lands, as contemplated by the Noninter--
course Act, by now approving the transfer
and making such approval effective as of
the date of the transfer.

Congressional approval of a transfer of

aboriginal title under the Nonintercourse Act is one way in which such aboriginal title can be effectively extinguished. Thus, the statements of the courts on the broad power of Congress to extinguish aboriginal title would be equally applicable to the broad power of Congress to approve transfers of aboriginal title. Accordingly, the principle of law as articulated in United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339, 347 (1941) that the manner, method and timing of extinguishment of aboriginal title "raise political not justiciable issues" and "the exclusive right of the United States to extinguish Indian title . . . is not open to inquiry in the courts," would be equally applicable to the manner, method and timing chosen by Congress to approve transfers of aboriginal title under the Nonintercourse Act. While most of the aboriginal title cases have involved the extinguishment of such title, rather than the approval by Congress of earlier transfers of such title by the Indian tribes, there are at least three decisions that provide specific authority for

Congress' power to approve prior transfers of aboriginal title.

In Seneca Nation of Indians v. United States, 173 Ct. Cl. 912 (1965), the Senecas sued the United States under the Indian Claims Commission Act for the United States' failure to sue the State of New York to recover lands that the tribe alleged were taken by New York in 1858 without federal approval and in violation of the Nonintercourse Act. New York had taken the lands by eminent domain for a dam and canal project that was subsequently abandoned in 1912. The taking by New York was accomplished without congressional approval and the amount paid to the tribe at that time was accepted by the tribe without protest. In 1924 the Senecas sought to have New York declare that the land reverted to the tribe because the state had abandoned the project for which the land was originally taken, but New York refused. In 1927 Congress passed legislation providing that New York's game and fish law would apply to lands still held by the Senecas, but that the legislation would not be applicable to lands of the Senecas that "were heretofore acquired by the State of New York by condemnation proceedings."

In affirming a decision of the Indian Claims Commission that the tribe was not entitled to recovery from the United States, the Court of Claims addressed the question

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of whether federal approval of the 1858 transfer had been

given:

[I]f federal consent was needed under the
Trade and Intercourse Act, such approval has.
been given. All agree that appellant would
have no complaint if assent had been given at
the time of the appropriations. But approval
can also come afterwards, and that is what
happened here. In 1927, -Congress provided-
that New York's game and fish laws should
thereafter apply to the Senecas Oil Spring
Reservation (among others), except "that this
Act shall be inapplicable to lands formerly in
the Oil Spring Reservation and heretofore
acquired by the State of New York by condemna-
tion proceedings." This explicit recognition
and implicit ratification of New York's owner-
ship of the tract must be taken as Congress's
approval of the original appropriation, as
well as of the state's continued claim of right.

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Thus, legislation enacted by Congress 69 years even when such legislation

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after a transfer of Indian lands did not specifically approve the transfer in accordance with the terms of the Nonintercourse Act -- can effectively satisfy the requirements of the Nonintercourse Act.

Another case supporting the approval

Ποτ

of prior transfers of Indian land is Buffalo, R. &P.R. Co. v. Lavery, 82 Sup. Ct. 396, 27 N.Y.S. 443 (App. Div. 1894), aff'd on opinion below, 149 N.Y. 576 (1896) That case involved the 2/

interpretation of an 1875 Act of Congress

173 Ct. Cl. at 915 (emphasis supplied).

that validated

2/

Act of Feb. 19, 1875, ch.90, $1, 18 Stat. 330.