Aboriginal title in New York

Aboriginal title in New York refers to treaties, purchases, laws and litigation associated with land titles of aboriginal peoples of New York, in particular, to dispossession of those lands by actions of European Americans. The European purchase of lands from indigenous populations dates back to the legendary Dutch purchase of Manhattan in 1626, "the most famous land transaction of all."Banner, 2005, at 75. More than any other state, New York disregarded the Confederation Congress Proclamation of 1783 and the follow-on Nonintercourse Acts, purchasing the majority of the state directly from the Iroquois nations without federal involvement or ratification.Gunther, 1958, at 3--7.

New York is the source of several landmark decisions concerning aboriginal title including Oneida I (1974), "first of the modern-day [Native American land] claim cases to be filed in federal court,"Vecsey & Starna, 1988, at 144. and Oneida II (1985), "the first native land claim case won on the basis of the Nonintercourse Act."Vecsey & Starna, 1988, at 145. New York was the site of nearly all remaining Native American possessory land claims when the United States Court of Appeals for the Second Circuit held in Cayuga Nation of N.Y. v. Pataki (2005) that the equitable doctrine of laches (duty of "timeliness") bars all tribal land claims sounding in ejectment or trespass, for both tribal plaintiffs and the federal government as plaintiff-intervenor.Kathryn E. Fort, The New Laches: Creating Title where None Existed, 16 Geo. Mason L. Rev. 357 (2009); Patrick W. Wandres, Native Land Claims, Sherrill and the Impending Legacy of the Doctrine of Laches, 31 Native Am. L. Rev. 131 (2006). Since the ruling, no tribal plaintiff has overcome the laches defense in a land claim in the Second Circuit.Oneida Nation of N.Y. v. County of Oneida, 617 F.3d 114 (2d Cir. 2010); Onondaga Nation v. New York, 2010 WL 3806492 (N.D.N.Y. 2010); Shinnecock Nation v. New York, 2006 WL 3501099 (E.D.N.Y. 2006).

There are currently 10 Native reservations in New York: Allegany Reservation, Cattaraugus Reservation, Oil Springs Reservation, Oneida Reservation, Onondaga Reservation, Poospatuck Reservation, St. Regis Mohawk Reservation, Shinnecock Reservation, Tonawanda Reservation, and Tuscarora Reservation.

History New Netherland

The details of the early dealings with indigenous peoples by the Dutch New Netherland settlements are not known with certainty.Royce, 1971, at 575. The first recorded land transaction is for Manhattan, reported by a letter from Peter Schagen, the deputy of the Dutch West India Company, on November 5, 1626, claiming: "They have purchased the Island Manhattes from the (Natives) for the value of 60 guilders; 'tis 11,000 morgens in size."1 N.Y. Colonial Doc. 37. Many secondary sources simply report this value as $24; of course: United States Dollars (and the United States) did not exist in 1626; 60 guilders likely represented the estimated value of trade goods; the historical exchange rate calculation used to reach this figure is not known (if in fact it is the source of any such calculation). By comparison, the value of the goods on the ship bearing the letter back to the Netherlands was 45,000 guilders. Sixty guilders in 1626, converted and adjusted for inflation, would be $888 in 2001 U.S. dollars.Felix S. Cohen, Original Indian Title, 32 Minn. L. Rev. 28, 38--39 (1947).

Prof. Banner, noting that the transaction was the first "purchase" of land from the indigenous population of the continent, and the fact that the natives remained in Manhattan and traded with the Dutch, argues that they would have been extremely unlikely to understand the transaction as a "sale."Banner, 2005, at 76. Other sources date the transaction to May 6, 1626.Martha J. Lamb, History of the City of New York 53. Dutch land patents traced their title to such a purchase.See, e.g. 1 N.Y. Colonial Doc. 44 (patent issued to Kiliaen Van Rensselaer). The colony's "New Project of Freedoms and Exemptions" (1629) prohibited private purchases of land from the indigenous population; a privilege reserved only for the Patroons of New Netherland.2 N.Y. Colonial Doc. 96--100. An amendment in 1640 gave preference "in the selections of land" to those who notified the company.2 N.Y. Colonial Doc. 119. The Patroons' reports to the States General refer to other land purchases in June 1634, October 25, 1634, and 1651.Royce, 1971, at 577--78.

Province of New York The British concluded the Treaty of Fort Stanwix with the Iroquois in 1768, bringing the boundary line of the colony into conformity with the Royal Proclamation of 1763. The method of purchasing lands established in that treaty was codified in the 1777 Constitution of New York.

Articles of Confederation-era During the Articles of Confederation-era, New York purchased a large amount of land from the Iroquois without complying with the requirements of the Confederation Congress Proclamation of 1783. Two-hundred years later, the Second Circuit held that the Confederation Congress had neither the intent nor the authority to restrict such purchased by states within their borders.Oneida Nation of New York v. New York, 649 F. Supp. 420 (N.D.N.Y. 1986), aff'd 860 F.2d 1145 (2d Cir. 1988), cert. denied, 493 U.S. 871 (1989).

New York and Massachusetts had long-disputed the property and sovereign rights to modern-day western New York.Hauptman, 2001, at 88. They resolved their differences in 1786 with the Treaty of Hartford, granting the property rights to Massachusetts and the sovereign rights to New York. In 1788, Oliver Phelps and Nathaniel Gorham acquired the pre-emptive rights to western New York from the state of Massachusetts in what became known as the Phelps and Gorham Purchase.

Post-Constitution

President George Washington gave the following speech to the Seneca Nation of New York in 1790, after the passage of the Nonintercourse Act: I am not uninformed that the six Nations have been led into some difficulties with respect to the sale of their lands since the peace. But I must inform you that these evils arose before the present government of the United States was established, when the separate States and individuals under their authority, undertook to treat with the (Native) tribes respecting the sale of their lands. But the case is now entirely altered. The general Government only has the power, to treat with the (Native) Nations, and any treaty formed and held without its authority will not be binding. Here then is the security for the remainder of your lands. No State nor person can purchase your lands, unless at some public treaty held under the authority of the United States. The general government will never consent to your being defrauded. But it will protect you in all your just rights.4 American State Papers 142 (1823). Text

Phelps and Gorham defaulted on their payments to Massachusetts in 1790 and the un-exercised western portion pre-emptive rights reverted to the state in 1791. Massachusetts resold the rights to Robert Morris that year. Morris retained the Morris Reserve for himself and sold the western portion of his rights to the Holland Land Company in 1792 and 1793 (the Holland Purchase).

The state of New York disregarded the requirements of the Nonintercourse Act (that a federal commissioner be present and that any sale of (Native) lands be approved by Congress) and purchased lands directly from Indians within the state until 1846.Hauptman, 2001, at 7, 47.

According to Prof. Hauptman: "(Native) American, the state's first residents, ended up in a quasicolonial status, dependent on the very people—Albany policymakers—who were responsible for dispossessing them. It is little wonder that the legacy of this colonial relationship in modern times has been the Iroquois land claims movement and that the lead community pushing these claims is the Oneidas . . . ."Hauptman, 2001, at 220.

Treaties

with the British TreatyDateTreaty locationTribe(s)Land provisionsNotesTreaty of Fort StanwixNov. 5, 1768Fort StanwixSix NationsLine of Property established

with the United States TreatyDateTreaty locationTribe(s)Land provisionsNotesTreaty of Fort Stanwix (1784)Oct. 22, 1784Fort StanwixSix NationsDefines Western and Northern boundaries7 Stat. 15; see Royce, 1971, at 648--49.Treaty of Fort McIntoshJan. 21, 1785Fort McIntosh (Pennsylvania)Wyandot, Delaware, Chippewa, and OttawaDefines boundaries and reservationsNever enforced; superseded by treaty of Aug. 3, 1795 at Greenville7 Stat. 16; see Royce, 1971, at 648--49.Treaty of Fort HarmarJan. 9, 1789Fort Harmar (Ohio)Six NationsModified treaty of Oct. 22, 1784 to protect lands south (in addition to east and north) of ceded lands7 Stat. 33; see Royce, 1971 at 650--53.Treaty of CanandaiguaNov. 11, 1794Canandaigua, New YorkSix NationsOnondaga, Oneida, and Cayuga reserves confirmed; Seneca boundaries defined7 Stat. 44; see Royce, 1971, at 652--55.Treaty of New York (1796)May 31, 1796New York CitySeven Nations of CanadaSeven Nations relinquish all claims in New York outside of two reservations7 Stat. 55; see Royce, 1971, at 656--57.Treaty of AlbanyMarch 29, 1797Albany, New YorkMohawkMohawks cede to New York all claims in New York7 Stat. 61; see Royce, 1971, at 658--59.Treaty of Big TreeSept. 15, 1797Genesee, New YorkSenecaSenecas sell Morris Reserve, minus twelve reservations7 Stat. 601; see Royce, 1971, at 658--61.Treaty of Buffalo Creek (I)June 30, 1802Buffalo Creek ReservationSenecaSenecas cede two reservations to Holland Land Company in exchange for other lands7 Stat. 70; see Royce, 1971, at 662--63.Treaty of Buffalo Creek (II)June 30, 1802Buffalo Creek ReservationSenecaSenecas cede Little Beard's reservation to Phelps, Bronson, and Jones7 Stat. 72; see Royce, 1971, at 662--63.Treaty of Buffalo Creek (III)Jan. 15, 1838Buffalo Creek Reservation"Several tribes of the New York (Natives)"Senecas sell to Ogden and Fellows the Buffalo Creek Reservation, Cattaraugus Reserve, Allegany Reservation, and Tonawanda Reservation; Tuscaroras sell reservation to Ogden and Fellows7 Stat. 550; see Royce, 1971, at 768--773.Treaty of Buffalo Creek (IV)May 20, 1842Buffalo Creek ReservationSenecaOgden and Fellows drop claim to Cattaraugus and Allegany reservations7 Stat. 586; see Royce, 1971, at 776--77.Treaty with the Seneca, Tonawanda BandNov. 5, 1857Tonawanda ReservationTonawanda Band of Seneca IndiansTonawanda Band purchase part of Tonawanda Reservation from Ogden and Fellows and surrender claim to remaining portion11 Stat. 735; see Royce, 1971, at 818--19.

with the State of New York TreatyDateTreaty locationTribe(s)Land provisionsNotes1785Fort HerkimerOneida in Broome and Chenango counties acquired for $11,500Hauptman, 2001, at 66.Sept. 1788Fort SchuylerOneida acquired, minus reservations in Madison and Oneida counties, for $5,500 plus a $600 annuity1790Oneida in present-day Utica, New York, granted to Samuel Kirkland and his sonsHauptman, 2001, at 70.March 1793OnondagaLands around Onondaga Lake; authorized roadsHauptman, 2001, at 77-78.July 27, 1795CayugaAll Cayuga lands except a parcel around Cayuga LakeHauptman, 2001, at 77.July 28, 1795OneidaAccording to Prof. Hauptman, the treaty was the "model for all Albany's efforts to dispossess the Oneidas for the next half-century."Hauptman, 2001, at 67, 76--77."Salt treaty"1795OnondagaHauptman, 2001, at 78.Sept. 15, 1795Oneida for $2,952 and $2,952 annuityUtilized state "power of attorney" statuteHauptman, 2001, at 80.Oct. 8, 1829Oneida from "First Christian Party"Hauptman, 2001, at 86.

State law

Constitution N.Y. Const. of 1777 art. XXXVII provided: