Aboriginal title statutes in the Thirteen Colonies were one of the principal subjects of legislation by the colonial assemblies in the Thirteen Colonies. With the exception of Delaware, every colony codified a general prohibition on private purchases of Native American lands without the consent of the government. Disputes were generally resolved by special interest legislation or war. Mohegan Indians v. Connecticut (1705–73), a lawsuit that proceeded for 70 years under special royal enabling acts only to be dismissed on non-substantive grounds, was the first and only judicial test of indigenous tenure.(PDF) Mark D. Walters, Mohegan Indians v. Connecticut (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America , 34 Osgoode Hall L.J. 785 (1996).
Aboriginal title remained a central political and economic issue and was listed as one of the enumerated grievances in the Declaration of Independence. Regardless, colonial land law relating to indigenous peoples became the foundation for aboriginal title in the United States during the Articles of Confederation-era and after the ratification of the United States Constitution. The colonial-law prohibition was codified at the federal level by the Confederation Congress Proclamation of 1783 and the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1834.
Pre-Revolutionary land transactions remained the subject of political and legal disputes well after Independence.See, e.g., Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). However, in sharp contrast to post-1790 transactions, no Indian tribe has yet succeeded in litigating or receiving compensation for a pre-1790 transaction. The prevailing view remains that the colonial governments, and the state governments that succeeded them during the Confederation era, had the power to authorize the alienation of indigenous lands within their borders.See Oneida Indian Nation of New York v. New York, 860 F.2d 1145 (2d Cir. 1988).
British law
The British monarchy made two attempts to regulate aboriginal land transactions in British North America by Royal Proclamation: first, the Royal Proclamation of 1622; second, the Royal Proclamation of 1763.
Statutes by colony
Connecticut The Connecticut Colony (est. 1636) and the New Haven Colony (est. 1637) merged in 1662.
Connecticut Colony In 1637, the Connecticut Colony authorized a military expedition to Pequot lands to "maynteine our right that God by Conquest hath given to us."Law to Occupy Conquered Pequot Lands (June 2, 1637), in 17 Vaughan and Rosen, at 252 ch. 4 document 3; see also Council Order to Control Settlement of Narragansett Country (Aug. 23, 1676), in 17 Vaughan and Rosen, at 304-05 ch. 4 document 89 (claiming Narragansett lands to be "within the known limitts of our Charter," "obtayned by conquest and successe of warr," and declaring them "now are recovered out of the hands of the Indian enemies that had victorized over or caused the people totally to desert all those lands which they had possessed themselves of, formerly."). Soon after, the colony decided to hold sachem's liable for the trespass of any Indian.Law to Require Indians to Pay for Trespasses (April 5, 1638), in 17 Vaughan and Rosen, at 253 ch. 4 document 6. The conquered Pequot land's were "dispose[d] . . . with lest prejudice to others that may hereafter succeed them."Law to Authorize Disposal of Pequot Lands (April 10, 1642), in 17 Vaughan and Rosen, at 255 ch. 4 document 10.
The first prohibitions on transactions prohibited leases, either to or from Indians.Law to Permit Limited Leasing of Land to Indians (March 9, 1648), in 17 Vaughan and Rosen, at 263 ch. 4 document 28 (applying to land east of the river and requiring permission of the Deputy Governor); Law to Prohibit Leasing of Land to Indians (May 20, 1647), in 17 Vaughan and Rosen, at 262 ch. 4 document 26 (noting "divers inconveniences" that arise when Indians "mixe themselves in their labours with the Inglishe"). The first prohibition on taking Indian property did not arise until 1660.Law to Prohibit Taking Indians' Property (Oct. 4, 1660), in 17 Vaughan and Rosen, at 280 ch. 4 document 57 ("[I]t shal not be lawful for any in the Collony to take away by force or otherwise, without the owners consent, under pretenc of debt, the corne or other estate from any Indian, unless it be by virtue of order from lawful authority."). This was explicitly extended to land acquisitions in 1663.Law to Prohibit Acquisition of Indian Land for Private Use (May 14, 1663), in 17 Vaughan and Rosen, at 282 ch. 4 document 60. ("[N]o person in this Colony shall buy, hire or receive as gift or mortgage, any parcel of land or lands of any Indian or Indians, for the future, except he doe buy and receive the same for the use of the Colony or the benefitt of some Towne, with the allowance of the Court"). The prohibition was strengthened in 1680.Law to Prohibit Purchase of Indian Lands (May 17, 1680), in 17 Vaughan and Rosen, at 311 ch. 4 document 100 ("[W]hat land is allotted or set apart for any parcells of Indians within the bownds of any plantation . . . shall be recorded to them and the same shall remayn to them and their heirs for ever; and it shall not be in the power of any such Indian or Indians to make any alienations thereof; and whatsoever Englishman shall purchass any such lands . . . shall forfeit treble the value of what he so purchases to the publique treasury, and the bargain shall be voyd and null."). The penalties were increased again in 1687.Law to Regulate Purchase of Indian Lands (June 1, 1687), in 17 Vaughan and Rosen, at 314 ch. 4 document 107.
"Gold Hill" was the first Indian reservation in the colony, established in 1659 and confirmed in 1678.Law to Confirm Indians' Rights to Certain Lands (May 13, 1678), in 17 Vaughan and Rosen, at 308 ch. 4 document 96; Law to Resolve Land Dispute at Stratford and Fairfield (May 19, 1659), in 17 Vaughan and Rosen, at 277-78 ch. 4 document 51 ("[A]ccording to the desire of the Indians they may quietly possess and enjoy henceforth and for future, that parcel of land called Gold Hill . . . . [T]his parcel of land called Gold Hill, surrendered by Stratford unto Paquanack Indians . . . shalbe ful satisfaction from them unto the Indians forenamed, and that neither they nore their successors shal make any further claimes or demaunds of land from Startford . . . . [I]n case those Indians shal wholly or at any time relqinquish or desert Gold Hill . . . it shal remaine to Stratford Plantation . . . ."). Indians were also explicitly permitted to use public lands for hunting.Law to Authorize Indians to Hunt on Conquered Lands (May 16, 1685), in 17 Vaughan and Rosen, at 313 ch. 4 document 104; Law to Permit Indians to Use Certain Lands (Oct. 18, 1676), in 17 Vaughan and Rosen, at 306 ch. 4 document 91. In other instances, the colony resolved land disputes between competing Indians.E.g. Law to Confirm Boundary Between Mohegans and River Indians (Oct. 20, 1680), in 17 Vaughan and Rosen, at 312 ch. 4 document 102. Other reservations were established for the Mohegans in New London in 1718Law to Secure Mohegans' Possession of Their Lands (Oct. 9, 1718), in 17 Vaughan and Rosen, at 338 ch. 4 document 131; see also Law to Prohibit Removal of Wood from Mohegan Lands (May 8-June 6, 1760), in 17 Vaughan and Rosen, at 374 ch. 4 document 164; Law to Supervise Mohegan Lands and Promote Christianity (Oct. 8, 1719), in 17 Vaughan and Rosen, at 339 ch. 4 document 132. and others in 1726 (which were exempted from the application of adverse possession),Law to Set Boundaries and Appoint Overseer for Indians near Kent (May 12-June 8, 1757), in 17 Vaughan and Rosen, at 372 ch. 4 document 161; Law to Protect Indian Lands in Western Connecticut (May 13–29, 1736), in 17 Vaughan and Rosen, at 358 ch. 4 document 155; Law to Protect Indians' Title to Lands (Oct. 13, 1726), in 17 Vaughan and Rosen, at 350 ch. 4 document 145. including the Pequot's before 1731.Law to Protect Pequot's Lands (May 13, 1731), in 17 Vaughan and Rosen, at 354 ch. 4 document 151.
The power to purchase Indian lands was delegated to townships in 1702.Law to Clarify Purchase of Indian Lands (Oct. 8-14, 1702), in 17 Vaughan and Rosen, at 318 ch. 4 document 114. In 1706, the colony offered amnesty for those who had purchased in violation of previous prohibitions as long as they provided a "true account."Law to Further Regulate Purchase of Indian Lands (Oct. 10-18, 1706), in 17 Vaughan and Rosen, at 322 ch. 4 document 118. In 1717, the colony declared "all lands in this government are holden of the King of Great Britain as the lord of the fee," barred the introduction of private purchases as evidence, and established a committee to "settle this whole affair."Law to Regulate Purchase of Indian Lands (May 9, 1717), in 17 Vaughan and Rosen, at 335 ch. 4 document 129. Noting that the prohibition was among the most "ancient laws" of the colony, the fine was increased in 1722, and treble damages were imposed.Law to Regulate Purchase of Indian Lands (Oct. 11, 1722), in 17 Vaughan and Rosen, at 340 ch. 4 document 134. No compensation was provided in the case of eminent domain.See, e.g., Resolution to Build Highway through Mohegan Lands (May 12-June 8, 1757), in 17 Vaughan and Rosen, at 373 ch. 4 document 162.
New Haven Prior to merging with the Connecticut Colony, the New Haven Colony also prohibited private purchases of Indian lands unless "in the name and for the use of the whole plantation."Law to Prohibit Unauthorized Acquisition of Land (Feb. 24, 1645), in 17 Vaughan and Rosen, at 395 ch. 5 document 7; Law to Prevent Individual Purchases of Land (Jan 4. 1640), in 17 Vaughan and Rosen, at 393 ch. 5 document 2.
Delaware Delaware appears to have passed no laws concerning Indian lands.
Georgia In 1758, Georgia passed a prohibition of private purchases of Indian lands: [I]f any person or persons whosoever shall attempt to purchase or contract for, or cause to be purchased or contracted for, or shall take or acept of a grant or conveyance of any lands or tracts of lands from any Indian, or body of Indians, upon any prtence whatsoever, (except for the use of the crown and that by permission for this purpose first had and obtained from his majesty, his heirs or successors, or his or their governor or commander in chief of the said province for the time being) every such purchase, grant, contract and conveyance, shall be, and is and are hereby declared to be null and void, to all intentts an purposes whatsoever . . . .Law to Regulate Purchase of Land from Indians (Feb. 15, 1758), in 16 Vaughan and Rosen, at 406 ch. 3 document 14.
Maryland In 1639 Maryland codified separate prohibitions on land purchases from Indians and non-English Europeans, set to expire at the end of the next session of the general assembly; the latter provided: Neither Shall [a subject of the King] obteine procure or accept of any Land within this Province from any Indian to his own or the use of any other than the Lord Proprietarie or his heirs[,] nor shall hold or possess and land . . . and upon pain that every person offending . . . Shall forfeit and lose to the Lord Proprietarie and his heirs all Such Lands so accepted or held without Grant of the Lord Proprietarie under him.Law to Regulate Land Purchases (Feb. 25-March 19, 1639), in 15 Vaughan and Rosen, at 259 ch. 2 document 3.