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The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title (also known as "original Indian title" or "Indian right of occupancy"). Native American tribes and nations establish aboriginal title by actual, continuous, and exclusive use and occupancy for a "long time." Individuals may also establish aboriginal title, if their ancestors held title as individuals. Unlike other jurisdictions, the content of aboriginal title is not limited to historical or traditional land uses. Aboriginal title may not be alienated, except to the federal government or with the approval of Congress. Aboriginal title is distinct from the lands Native Americans own in fee simple and occupy under federal trust. The power of Congress to extinguish aboriginal title—by "purchase or conquest," or with a clear statement—is plenary and exclusive. Such extinguishment is not compensable under the Fifth Amendment, although various statutes provide for compensation. Unextinguished aboriginal title provides a federal common law cause of action for ejectment or trespass, for which there is federal subject-matter jurisdiction. Many potentially meritorious tribal lawsuits have been settled by Congressional legislation providing for the extinguishment of aboriginal title as well as monetary compensation or the approval of gaming enterprises. Large-scale compensatory litigation first arose in the 1940s, and possessory litigation in the 1970s. Federal sovereign immunity bars possessory claims against the federal government, although compensatory claims are possible by statute. The Eleventh Amendment bars both possessory and compensatory claims against states, unless the federal government intervenes. The US Supreme Court rejected nearly all legal and equitable affirmative defenses in 1985. However, the Second Circuit—where most remaining possessory claims are pending—has held that ''laches'' bars all claims that are "disruptive." ==History== ;Before Independence (詳細はColonial history of the United States was characterized by private purchases of lands from Indians. Many of the earliest deeds in the Eastern states purport to commemorate such transactions. The Royal Proclamation of 1763 changed matters, reserving for the Crown the exclusive right of preemption, requiring all such purchases to have Royal approval. It was also an attempt to restrain colonial settlement west of the Appalachian Mountains (see map). Forged versions of the Pratt-Yorke opinion of 1757 (in its authentic form, a joint opinion of Britain's Attorney General and Solicitor General regarding land purchases in India) were circulated in the colonies, edited such that it appeared to apply to purchases from Native Americans. The Royal Proclamation was among the enumerated complaints in the Declaration of Independence: He has endeavoured to prevent the Population of these States; for that Purpose ... raising the Conditions of new Appropriations of Lands. ;Articles of Confederation-era The Confederation Congress Proclamation of 1783 prohibited the extinguishment of aboriginal title without the consent of Congress. But, the states, particularly New York, purchased lands from tribes during this period without the consent of the federal government. These purchases were not tested in court until the 1970s and 1980s, when the Second Circuit held that the Confederation Congress had neither the authority under the Articles of Confederation nor the intent to limit the ability of states to extinguish aboriginal title within their borders; thus, the Proclamation was interpreted to apply only to the federal territories. ;Post-Constitution States lost the ability to extinguish aboriginal title with the ratification of the United States Constitution in 1788, which vested authority over commerce with American Indian tribes in the federal government. Congress codified this prohibition in the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, and 1833. ;Marshall Court (詳細はMarshall Court (1801—1835) issued some of the earliest and most influential opinions on the status of aboriginal title in the United States, most of them authored by Chief Justice John Marshall. But, without exception, the remarks of the Court on aboriginal title during this period are ''dicta''.〔Banner, 2005, p. 180.〕 Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction. ''Fletcher v. Peck'' (1810) and ''Johnson v. M'Intosh'' (1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuits, where land speculators deceived the court with a falsified case and controversy in order to elicit the desired precedent.〔Banner, 2005, p. 171--72, 179.〕〔Kades, 148 U. Pa. L. Rev. at 1092--93.〕 In ''Cherokee Nation v. Georgia'' (1831) and ''Worcester v. Georgia'' (1832), the ''dicta'' of Marshall and the dissenting justices embraced a far broader view of aboriginal title. ''Johnson'' involved a pre-Revolutionary private conveyances from 1773 and 1775; ''Michell v. United States'' (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. In both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable, except to The Crown. ;Removal era The Indian Removal Act of 1830 established policy that resulted in the complete extinguishment of aboriginal title in Alabama and Mississippi (1832); Florida and Illinois (1833); Georgia, North Carolina, and Tennessee (1835) (Treaty of New Echota ); Indiana (1840); and Ohio (1842).〔Banner, 2005, p. 226.〕 ;Reservation, treaty, and termination eras This shift in policy resulted in all tribal lands being either ceded to the federal government or designated as an Indian reservation in Iowa, Minnesota, Texas, and Kansas by 1870; Idaho, Washington, Utah, Oregon, Nevada, Wyoming, Nebraska, and Colorado by 1880; and Montana, Arizona, and New Mexico by 1886.〔Banner, 2005, p. 235.〕 Whereas, "it had taken whites 250 years to purchase the Eastern half of the United States, ... they needed less than 40 years for the Western half."〔 Unlike the Eastern purchases, "some of the transactions in the West involved immense areas of land. More than 75 percent of Nevada, for example, was acquired in two bites; the large majority of Colorado in three. It was not long before the West was dotted with Indian reservations."〔 Congress banned further Indian treaties by statute in 1871, but treaty-like instruments continued to be used to alienate Indian land and designate the boundaries of reservations.〔Banner, 2005, p. 251.〕 Language in an 1881 Indian Country bill—referring to "lands to which the original Indian title has never been extinguished"—was struck by its sponsors, who claimed that "there are no such lands in the United States."〔Banner, 2005, pp. 235--36.〕 In 1887, the Dawes Act introduced an allotment policy, whereby communal reservation lands were divided into parcels held in fee simple (and thus alienable) by individual Indians, with the "surplus," as declared by the government, sold to non-Indians. Allotment ended in 1934.〔Banner, 2005, pp. 287--88.〕 ;1940s—present The Alaska Native Claims Settlement Act (1971) extinguished all aboriginal title in Alaska (although the legitimacy of the act remains disputed by some Alaskan natives〔http://www.akhistorycourse.org/articles/article.php?artID=280〕〔http://www.alaskool.org/projects/ancsa/articles/ADN/RyanOlsenDec2004.htm〕). Indian Land Claims Settlements extinguished all aboriginal title in Rhode Island (1978) and Maine (1980). According to Prof. Stuart Banner: :()he story of Indians and land over the past sixty years has primarily been that of tribes' efforts to get land back, or to be compensated for land wrongfully taken. Indians have directed land claims at every branch of the federal government—at Congress, at the courts, at the Interior Department, and, for the 1940s to the 1970s, at the purpose-built administrative agency called the Indian Claims Commission. Some of these claims have been remarkably successful, culminating either directly in court judgements or indirectly in legislative settlements.〔Banner, 2005, p. 291.〕 抄文引用元・出典: フリー百科事典『 ウィキペディア（Wikipedia）』 ■ウィキペディアで「Aboriginal title in the United States」の詳細全文を読む スポンサード リンク
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