Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims

The land claims of the Passamaquoddy, Penobscot, Oneida, Mashpee, 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. This provision conclusively established, at least in theory, the exclusive authority of the federal government to extinguish aboriginal title to land. The actual practice was quite different, however, because some of the original thirteen states, accustomed to some degree of power under the Articles of Confederation in the field of controlling tribal Indian title, did not immediately acknowledge the complete federal preemption of that field under the Constitution. Section 177 and its predecessors, which are the focus of this article, provide the source of the cause of action common to all of the eastern land claims.

The federal statutory restraint on alienation was enacted after more than 150 years of conflict between the colonies and the crown, and later the states and the federal government, over control of Indian affairs. This struggle for control, culminating in federal preemption of state power over Indian affairs under the 1789 Constitution, presages by two centuries similar power disputes between the states and the federal government during the twentieth century. Because section 177 is a cornerstone of the modem federal trusteeship over all Indian land, the federal role is instrumental in enforcing the statutory restraint on alienation, as it was in creating the restraint.