prior leases of land made by the Seneca Nation and its members. The plaintiff railroad claimed it was entitled to the land in question on the basis of an 1872 lease from the Senecas, while the defendant, who was in actual possession of the land, claimed the right of possession based on a lease granted by the Senecas in 1866. Although the court assumed that both the 1872 lease to the plaintiff railroad and the 1866 lease to the defendant's predecessor in interest were invalid because they were not approved under the Nonintercourse Act, the court determined that the 1875 Act of Congress effectively validated all prior leases made by the Senecas. Since the defendant's rights were based on a lease executed six years carlier than the lease granted to the plaintiff railroad, the court ruled that the defendant was entitled to possession. Support for congressional authority to approve prior transfers of aboriginal title is also found in Seneca Nation v. Christy, 126 N.Y. 122, 27 N.E. 275 (1891), writ of error dismissed on other grounds, 162 U.S. 283 (1896). In that case, the New York Court of Appeals considered an action for ejectment against a landowner whose title was derived from private parties that had purchased the land from the tribe in 1926 in a transaction that had not been approved by Congress. The tribe sought ejectment of the landowner on the grounds that the original transfer was in violation of the Nonintercourse In concluding that the tribe could not maintain the action, Act. -50 the court noted that one basis for its conclusion was that The United States, which imposed the Congressional approval of prior transfers of aboriginal title would in no way constitute a "rewriting of history" as has occasionally been alleged. It would simply confirm 180 years of history and the validity of millions of land transactions that have been effected in good faith and without any intent to deprive the Indian tribes of rightful claims. Indeed, by relying on the legal technicality of Congress' failure to approve the original transfers in past centuries, arguably it is the plaintiffs in the Nonintercourse Act suits who seek to rewrite history by upsetting 180 years of good faith reliance upon the validity of the original 1 126 N.Y. at 146-47, 27 N.E. at 282. -51 transfers and innumerable land transactions that have taken place during the intervening period. 2. Congress can extinguish aboriginal title Although congressional approval of prior transfers of aboriginal title lands would satisfy the requirements of the Nonintercourse Act and should be effective to extinguish any aboriginal title claims to such lands, to remove any possible doubt on this point Congress should make clear in the legislation that its approval of prior transfers is intended to have the effect of extinguishing the aboriginal title as of the date of the prior transfers. The power of Congress to extinguish aboriginal title effective as of some earlier event was recently exercised in the Alaska Native Claims Settlement Act, 43 U.S.C. $1601-24 (Supp. I 1971), and has been judicially sustained by the courts. The Alaska Native Claims Settlement Act was enacted in 1971 as a comprehensive settlement of conflicts over land rights between the State of Alaska and Alaskan Natives who claimed aboriginal title based on current use and occupancy to vast land areas in the state. Subsequent to the passage of the Alaska Statehood Act in 1958, the Secretary of the Interior began to issue mineral leases on public lands -52 in the State and to issue tentative, approvals of the selections made by the State of Alaska of large areas of federally owned land that, under the terms of the Statehood Act, the State had the right to select. These administrative actions were challenged by the Alaskan Natives as conflicting with their aboriginal title to the lands involved. The Alaska Native Claims Settlement Act was intended to resolve these conflicts by extinguishing the aboriginal claims and providing compensa1/ tion to the affected native groups. Section 4 (a) of the Settlement Act 2/ was a clear example of the exercise of Congress' power to extinguish aboriginal title effective as of a prior event. That section stated that: :: --All prior conveyances of public land and The prior conveyances and tentative approvals referred to had been made by the Secretary of the Interior As will be discussed in the next subsection, such compensation was not legally or constitutionally required but represented Congress' response "to the strong moral claims of the Natives to compensation." Edwardsen v. Morton, 369 F. Supp. 1359, 1378 (D.D.C. 1973). -53 between 1958 and 1969 - 1/ some two to thirteen years prior to the enactment of the extinguishment legislation in 1971. The power of Congress to extinguish the aboriginal title of the Alaskan Natives in this manner was specifically upheld in Edwardsen v. Morton, 369 F. Supp. 1359, 1377-78 (D.D.C. 1973) and United States v. Atlantic Richfield Co., 435 F. Supp. 1009, 1022-25 (D. Alaska 1977). Certainly if the Congress has the power to extinguish aboriginal title to lands currently occupied by an Indian tribe, effective as of an earlier date, as it did in the Alaskan Native Claims Settlement Act, there should be no doubt about Congress' power to extinguish aboriginal title, effective as of an earlier date, where the tribe has not occupied or used the lands in question for the better part of two centuries. Other cases support the principle that Congress may retroactively extinguish aboriginal title. In United States v. Northern Paiute Nation, 490 F.2d 954 (Ct. Cl. 1974), the issue before the Court of Claims was at what point in time the aboriginal title of the tribe had been extinguished and whether the United States was liable for the trespasses of miners who 17 It should be noted that the Edwardsen opinion upheld |