Mohegan Indians v. Connecticut

Uncas

Mohegan Indians v. Connecticut (1705–1773) was the first indigenous land rights litigation in history in a common law jurisdiction.^[1][2][3][4] Prof. James Youngblood Henderson calls the case "the first major legal test of indigenous tenure."^[5] Prof. Robert Clinton calls it the "first formal litigation of North American Indian rights,"^[6][7] "the first major eighteenth century challenge to local colonial control of relations with Indian tribes," and “the greatest cause ever heard at the Council Board.”^[8]

The case established that "in certain circumstances native nations on reserved lands in British colonies were subject, not to colonial jurisdictions established for settlers, but to their own traditional customs."^[9] The Mohegan claim was not a claim to aboriginal title, but rather a claim that certain lands were held in trust by the descendants of John Mason on their behalf.

The dispute

English settlers arrived on the coast of Connecticut in the 1630s, coming into contact with the Mohegan people.^[9] The Mohegan sachem Uncas ceded all Mohegan lands to them in 1640, with the exception of a reserve of farms and hunting grounds.^[9] The reserved lands were later conveyed to Major John Mason, the future deputy governor, in 1659.^[9] The conveyance was to Mason and his heirs "as their Protector and Guardian In Trust for the whole Moheagan Tribe."^[9] Mason transferred the land to the colonial government in 1660, on the condition that sufficient land be left for the Mohegans to farm.^[9]

Both the Mohegans and Mason's heirs argued—during the century long dispute—that this last transfer was invalid, and that his heirs continued to hold the land in trust for the Mohegans.^[9] Connecticut was incorporate by royal charter in 1662, with its boundaries including the disputed lands.^[9] A 1681 treaty between the Mohegans and the colony acknowledged some sort of Mohegan interest in the land and provided that the colony would administer "Equal Justice" to Mohegans "as our own people" if they "before hand declared their Subjection to our Laws."^[9] The colony began granting the disputed land in 1687 by legislation and orders in council.^[9]

The proceedings

1704 Dudley Commission

Joseph Dudley, Governor of Massachusetts

In 1704, the Masons petitioned the Crown, on behalf of the Mohegans, arguing that the grants violated the treaties.^[9] In February 1704, Sir Edward Northey, the Attorney General, opined to the Board of Trade that the Crown could establish a court with the authority to hear the dispute, and enforce its decision upon the colony should the Mohegans prevail.^[9] Northey also expressed his opinion that the act of Connecticut in granting the land was "illegal and void."^[9] In March 1704, the Board of Trade agreed and referred Northey's advice to the Crown.^[9] The Board of Trade also recommended that the Crown cover the legal fees of the Mohegans.^[9]

The Crown agreed in April 1704 and referred the dispute to Governor Joseph Dudley and the council of Massachusetts, with a Commission empowering them to form a tribunal.^[9] The Commissions ruling was to be legally binding without subsequent approval by the Crown, but the right of appeal to the Privy Council was reserved.^[9] Walters argues that the Mohegans must have been considered a "component of the Empire" in order for the Crown to have original jurisdiction over a dispute between them and Connecticut.^[9] The Attorney General later opined, in denying to create a similar Commission to mediate a dispute between settlers in New Jersey and the colony of New Jersey over the purchase of Native American lands by the settlers, that the situations were inapposite because there was "no common Court of Justice" between the Mohegans and Connecticut.^[9]

Connecticut contested the jurisdiction of the Commission and did not participate further.^[9] Dudley and the Commission unanimously sided with the Mohegans in 1705.^[9]

1706 Commission of Review

On appeal from the colony, the Privy Council appellate committee granted a Commission of Review in 1706.^[9] This Commission never met.^[9]

1737 Commission of Review

A second such Commission was established in 1737.^[9] The second Commission consisted of the Governor of Rhode Island, and members from the councils of Rhode Island and New York.^[9] That Commission sided with Connecticut in 1738, on the grounds that Ben Uncas—who was embroiled in a sachem succession dispute—was the valid sachem and had recently released Connecticut from the claim.^[9] After the Commission determiend that Ben Uncas was the sachem, before reaching the merits, the New York council members (who had dissented on the sachem issue) accused the Rhode Island council members of bias and left.^[9] The merits decision was ultimately set aside because of "alleged irregularities" and a third Commission was called.^[9]

1743 Commission of Review

The third Commission sided with Connecticut in 1743.^[9] The sachem issue was not re-litigated because Connecticut withdrew its objection.^[9] Third-party tenants were allowed to raise an objection to the jurisdiction of the original tribunal.^[9] The Commission eventually reached the merits and decided that the deeds were valid.^[9]

Privy Council decision

The Mohegans appealed to the Privy Council; the appeal began in 1770 and the Privy Council sided with Connecticut in 1772, without a written opinion.^[9] The Crown confirmed this decision in 1773.^[9]

Reporting

The decision was not reported in a law reporter. In fact, no reported judicial decisions from the 17th or 18th centuries recognized or applied Aboriginal customary law.^[9]

J.H. Smith provides a detailed history of the legal proceedings of the case, but reports quotations from the decision only sporadically.^[9]

Significance

Aboriginal title

Main article: Aboriginal title

A summary of Mohegan Indians was included by Chief Justice John Marshall in his opinion in Johnson v. M'Intosh (1823):

The controversy between the colony of Connecticut and the Mohegan Indians, depended on the nature and extent of a grant made by those Indians to the colony; on the nature and extent of the reservations made by the Indians, in their several deeds and treaties, which were alleged to be recognised by the legitimate authority; and on the violation by the colony of rights thus reserved and secured. We do not perceive, in that case, any assertion of the principle, that individuals might obtain a complete and valid title from the Indians.^[10]

Tribal sovereignty

Main article: Tribal sovereignty in the United States

Some commentators have suggested that Mogehan Indians stood for the proposition that British law recognized indigenous tribal nations as having rights of sovereignty. For example, J.H. Smith claims that the Mohegans were "juristically regarded as sovereign."^[11] Mark Walters, a lecturer at Oxford, disagrees with these claims.^[9] However, Walters agrees that, if true, that interpretation of the decision would "revolutionize the traditional understanding of Aboriginal legal status in Canada."^[9]

Modern relitigation and settlement

Further information: Indian Land Claims Settlements

The Mohegan Sun, the second-largest casino in the United States

In 1979, the Mohegans filed a complaint against the state of Connecticut in the United States District Court for the District of Connecticut for possession of lands in the northeast portion of Montville, Connecticut. Judge Blumenfeld rejected the state's motion to dismiss, holding that the Indian Nonintercourse Act applied to the entire country, including the lands in question.^[12] The Second Circuit upheld this ruling on interlocutory appeal,^[13] and the U.S. Supreme Court denied certiorari.^[14]

On remand, Blumenthal granted the Mohegan's motion to strike the state's affirmative defenses, holding that the state's title—acquired from private parties who acquired the land in violation of the Nonintercourse Act—was void, and that the Tenth and Eleventh amendments did not bar the suit.^[15] Finally, Blumenthal struck the state's defense of res judicata based on the 18th century lawsuit, holding—inter alia—that "the 1743 judgment itself recognizes the Indians' possessory right to the lands at issue in this action."^[15]

On March 15, 1994, the Department of the Interior granted the Mohegans federal recognition.^[16] On October 19, 1994, the U.S. Congress passed the Mohegan Nation (Connecticut) Land Claim Settlement Act, extinguishing all of the Mohegan's aboriginal title in Connecticut and all claims of the Mohegan Nation against the state, in exchange for the approval of Mohegan gaming operations; the remaining Mohegan reservation lands were transferred to the United States in trust.^[17] The Mohegan Sun, the second largest casino in the United States, opened on October 12, 1996.

Notes

1. ^ Merete Falck Borch, Conciliation, compulsion, conversion 216 (2004). "The first British case of a judicial character to deal specifically with the rights of the Indians in North America was that of the Mohegan Indians v. Connecticut [...]
2. ^ Sidney L. Harring, White man's law: native people in nineteenth-century Canadian jurisprudence 75 (1998). "Indian nations as legal entities had both brought lawsuits and been held to hold land under English law since The Mohegan Indians v. Connecticut [...]"
3. ^ Ward Churchill, Struggle for the land 79 (2002). "This has been so since at least as early as the 1773 case, Mohegan Indians v. Connecticut [...]"
4. ^ Francis Jennings, The Invasion of America 130 (1975). "The most extensively prolonged wrangle over Indian title was probably the case of the Mohegan Indians v. Connecticut."
5. ^ James Youngblood Henderson, "Aboriginal Rights in Western Legal Tradition" in The Quest for justice: aboriginal peoples and aboriginal rights 193 (1985).
6. ^ Robert N. Clinton, "Rules of the Game: Sovereighnty and the Native American Nation", 27 CTLR 1055 (1995).
7. ^ Robert N. Clinton, "The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs," 69 BULR 329 (1989).
8. ^ Robert N. Clinton, The Dormant Indian Commerce Clause, 27 CTLR 1055 (1995).
9. ^ ^{a b c d e f g h i j k l m n o p q r s t u v w x y z aa ab ac ad ae af ag ah ai aj ak al} Mark D. Walters. "Mohegan Indians v. Connecticuit (1705-1773) and the Legal Status of Aboriginal Customary Laws and Government in British North America". 34(4) Osgoode Hall L.J. 785-829.
10. ^ Johnson v. McIntosh, 21 U.S. 543, 598 (1823).
11. ^ Smith, 1950, p. 442.
12. ^ Mohegan Tribe v. Connecticut, 483 F. Supp. 597 (D. Conn. 1980).
13. ^ Mohegan Tribe v. Connecticut, 638 F.2d 612 (2d Cir. 1980).
14. ^ Connecticut v. Mohegan Tribe, 452 U.S. 968 (1981).
15. ^ ^{a b} Mohegan Tribe v. Connecticut, 528 F. Supp. 1359 (D. Conn. 1982).
16. ^ 59 Fed. Reg. 12140-01 (1994).
17. ^ Mohegan Nation (Connecticut) Land Claim Settlement Act, Pub. L. No. 103-377, § 2, 108 Stat. 3501 (1994) (codified at 25 U.S.C. § 1775 (2006)).

References

• E. Edwards Beardsley, The Mohegan Land Controversy, 3 New Haven Hist. Soc. Papers 205 (1882).
• De Forest, J. W. (1852). History of the Indians of Connecticut from the Earliest Known Period to 1850. Hartford: Wm. Jas. Hamersley. 
• Holdsworth, W. (1926). A History of English Law. 11. London: Methuen. 
• Smith, J. H. (1950). Appeals to the Privy Council from the American Plantations. New York: Columbia University Press. 
• Scott, James Brown. 1919. Judicial settlement of controversies between states of the American union.
• Washburne, G. A. (1923). Imperial Control of the Administration of Justice in the Thirteen American Colonies, 1684-1776. New York: Columbia University Press.