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31 Me. L. Rev. 17 (1979-1980)
Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims

handle is hein.journals/maine31 and id is 27 raw text is: JUDICIAL ENFORCEMENT OF THE FEDERAL RESTRAINTS ON ALIENATION OF INDIAN LAND: THE ORIGINS OF THE EASTERN LAND CLAIMS d Robert N. Clinton* and Margaret Tobey Hotoppt I. INTRODUCTION The land claims of the Passamaquoddy, Penobscot, Oneida, Mash- pee, Narragansett, and other eastern Indian tribes' have recently drawn attention to the federal statute governing alienation of tribal lands upon which the claims are based-25 U.S.C. § 177.2 While the * Professor, University of Iowa College of Law; B.A. 1968, University of Michigan, J.D. 1971, University of Chicago. Member of the Illinois and Iowa bars. t Law Student, University of Iowa College of Law; B.A. 1974, University of Iowa; J.D. University of Iowa, expected 1980. 1. The major reported cases are Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (2d Cir. 1972), rev'd, 414 U.S. 661 (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. 1979), cert. denied, 48 U.S.L.W. 3221 (Oct. 2, 1979); Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899 (D. Mass. 1977); Schaghticoke Tribe of Indians v. Kent School Corp., 423 F. Supp. 780 (D. Conn. 1976); Narragansett Tribe of Indians v. Southern R. I. Land Dev. Corp., 418 F. Supp. 798 (D.R.I. 1976); Joint Tribal Council of the Passamaquoddy Tribe v. Morton, 388 F. Supp. 649 (D. Me. 1975), off'd, 528 F.2d 370 (1st Cir. 1975). Unreported cases include Western Pequot Tribe of Indians v. Holdridge Enterprises, Inc., Civil No. 76-193 (D. Conn., filed 1976); Mohegan Tribe v. Connecti- cut, Civ. No. H-77-434 (D. Conn., filed 1977); Epps v. Andrus, Civil No. 77-3739-S (D. Mass., filed Dec. 26, 1974); Unitea States v. Maine, Civil Nos. 1966 and 1969 (D. Me., filed July 1, 1972); Oneida Indian Nation v. County of Oneida, No. 74-CIV-187 (N.D.N.Y., filed 1974); Oneida Indian Nation v. Williams, No. 74-CIV-167 (N.D.N.Y., filed 1974). Claims asserted by the Cayuga Tribe to some 64,000 acres of land in upstate New York have been tentatively settled although suit was never filed. Dept. of Interior News Release for Indian Affairs (August 20, 1979). The Solicitor of the Department of the Interior has ruled that the federal government will not pursue a claim asserted by the Shinnecock Tribe to 3,158 acres in South Hampton, New York. Dept. of Interior News Release (September 4, 1979). Finally, a bill has been submitted to Congress to settle a claim made by the Catawba Tribe upon which hearings have been held. H. R. 3274, 96th Cong., 1st Seas. (1979); see Washing- ton Report, 5 AM. INDLAN J. 23-24 (July 1979). 2. No purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or convention entered into pursuant to the Constitution. Every person who, not being employed under the authority of the United States, attempts to negotiate such treaty or convention, directly or indirectly, or to treat with any such nation or tribe of Indians for the title or purchase of any lands by them held or claimed, is liable to a penalty of $1,000. The agent of any State who may be present at any treaty held with Indians under the authority of the United States, in the presence and with the approbation of the commissioner of the

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