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29 Cath. U. L. Rev. 625 (1979-1980)
Tribal Status and the Indian Nonintercourse Act: An Alternative to the Montoya Definition of Tribe

handle is hein.journals/cathu29 and id is 635 raw text is: TRIBAL STATUS AND THE INDIAN NONINTERCOURSE ACT: AN ALTERNATIVE TO THE MONTFYA DEFINITION OF TRIBE In recent years, American Indians have instituted a number of lawsuits to regain lands in the eastern United States1 allegedly alienated from their possession in violation of the Indian Nonintercourse Act.2 Probably the most publicized of these cases is the Passamaquoddy tribe's claim to ap- proximately two-thirds of the state of Maine3 although other suits include the Oneidas' claim to 246,000 acres of New York4 and the Catawba tribe's attempt to regain 140,000 acres in South Carolina.5 Since vast expanses of land are at stake, judicial interpretation and application of the Indian Nonintercourse Act have assumed substantial significance in the litigation. Presently, a potentially important aspect of the litigation concerning the Indian Nonintercourse Act is defining what constitutes an Indian tribe.6 If an Indian group fails to prove that it is a tribe as contemplated by the Nonintercourse Act, a court will not order the return of land allegedly alienated from the Indians' possession in violation of the Act.7 Previous recognition as a tribe by the Bureau of Indian Affairs (BIA) is a persuasive 1. See Vollmann, A Survey of Eastern Indian Land Claims: 1970-1979, 31 ME. L. REV. 5 (1979). 2. 25 U.S.C. § 177 (1976) (originally enacted as Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137, 138, as amended by Act of June 30, 1834, ch. 161, § 12, 4 Stat. 730). 3. See Comment, Resolution of Eastern Indian Land Claims. A Proposalfor Negotiated Settlements, 27 AM. U.L. REV. 695 (1978); I/Indian Tribes Win Legal War to Regain Hal/of Maine, U.S. NEWS & WORLD REPORT, April 4, 1977, at 53. 4. Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977) (seeking trespass damages for illegal use and occupancy of tribal lands). 5. See Vollmann, supra note 1, at 12. The land claimed by the Catawba tribe was originally reserved to the tribe in a treaty with the British Crown and later ceded to the state of South Carolina. Id. 6. See Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940 (D. Mass. 1978), a'dsub nom. Mashpee Tribe v. New Seabury Corp., 592 F.2d 575 (1st Cir.), cert. denied, 100 S. Ct. 138 (1979); Narragansett Tribe 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 (N.D. Me.), afj'd, 528 F.2d 370 (lst Cir. 1975); note 75 and accompanying text infra. See also St. Clair & Lee, Defense of Nonintercourse Act Claims.- The Requirement of Tribal Existence, 31 ME. L. REV. 91 (1979). 7. See, e.g., Mashpee Tribe v. Town of Mashpee, 447 F. Supp. 940 (D. Mass. 1978).

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