5 October 2009

New York Native American Real Estate Title Update

An interesting recent case involving competing title claims to lands located in the Town of Huntington on Long Island addresses the issue of whether title conveyed by Native Americans, without the English Crown’s (and later the Federal Government’s) approval, is valid.
United States Real Estate and Construction
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An interesting recent case involving competing title claims to lands located in the Town of Huntington on Long Island addresses the issue of whether title conveyed by Native Americans, without the English Crown's (and later the Federal Government's) approval, is valid. See, O'Brien v. Town of Huntington, ____AD3d____, 884 NYS2d 446 (Appellate Division, Second Department – August 2009), holding that title granted by colonial patent pre-empts that granted by deeds from Native Americans without approval of the Crown.

By way of background, in 1496, four (4) years after Christopher Columbus had claimed lands for Spain in the Caribbean and Central America, King Henry VII of England granted letters patent to the Venetian John Cabot, also known as John Kabatto, and his three sons, Lewis, Sebastian and Sancio " find, discover and investigate whatsoever islands, countries, regions or provinces of heathens and infidels, in whatsoever part of the word placed, which before this time were unknown to all Christians...(and to) set up our aforesaid banners and ensigns in any town, city, castle, island or mainland whatsoever, newly found by them ... (and to) conquer, occupy and possess... acquiring for us (England) the dominion, title and jurisdiction...." (emphases supplied) See, Patent Granted by King Henry VII to John Cabot and his Sons, March 1496, Public Record Office, London.

In reliance on these letters patent, Cabot in 1497 and 1498 "discovered" the Eastern seaboard of what is now the United States and the English Crown laid claim to those lands which were later granted by royal patents to loyal subjects of the Crown. Following the American Revolution, the Federal Government stepped into the shoes of the Crown with the power to grant any remaining lands which had theretofore not been conveyed out by the Crown, the English by then having gained title to all lands west to the Mississippi River following their victory in the French and Indian War and subsequent treaties with France and Spain in 1763. The extent of this title was substantially expanded following the Federal Government's acquisition of the Louisiana Purchase from France in 1803.

The Native Americans, who had inhabited all these lands when the Europeans arrived, were deemed to have no rights to title but only rights of possession.

Chief Justice Marshall detailed this history in his decision in Johnson v. McIntosh, 21 US 543, 8 Wheat. 543 (1823), portions of which are quoted below, in which he ruled that grants of title (deeds) derived from Native American chiefs in 1773 and 1775 could not be recognized and were, therefore, invalid. He further held that the Native Americans' rights to continue in occupancy of their lands were subject to their good behavior.

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence. But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. (emphasis supplied) (at 572-573)


In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. (emphases supplied) (at 574)


We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny...These claims have been maintained and established as far west as the river Mississippi, by the sword...Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. (emphasis supplied) (at 588-589)


The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest...The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people...that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers. (at 589)


But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. (emphasis supplied) (at 590)


However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to antural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. (emphasis supplied) (at 591-592)

Of course, we now know that even this right of occupancy was in most part a fiction and in fact denied by the colonists and later by the Americans who drove the Native Americans from most their lands.

Following these principles and relying on the 1790 Nonintercourse Act and the 1794 Treaty of Canandaigua between the Six Indian Nations and the Federal Government which for the first time guaranteed such Nations' title as well as "use and enjoyment" of their then remaining lands in upstate New York and prevented them from selling such lands without approval of the Federal Government (as successor to the English Crown), the Oneida, Cayuga, Seneca, and Onondaga Indian Nations have since 1970 brought a series of cases in Federal Court in an attempt to recapture title and tax exempt status and to obtain lost value and rents from lands they were basically forced to sell to the State of New York without Federal approval in the years following the 1794 Treaty.

Justice Ginsburg put the recapture of tax exempt status claims to rest in 2005 in her holding in Sherrill v. Oneida Indian Nation of New York, 544 US 197, 125 S.Ct. 1478, in which she held (Justice Stevens being the only dissent) that the equitable doctrines of laches, acquiescence and impossibility precluded such claims, due to the long passage of time since the State of New York resold these lands to white settlers and the lands in question having been only recently reacquired by the Oneida Nation. The Second Circuit, Court of Appeals has followed the Sherrill holding in Cayuga Indian Nation of New York v. Pataki, 415 F3rd 266 (2005) by similarly barring an ejectment claim based on laches, thereby continuing to follow the principles set forth by Chief Justice Marshall in Johnson, supra, that "(h)owever extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned".

Interestingly, however, the damages claims for lost value and rents brought by the Indian Nations still survive. See, Oneida Indian Nation of New York v. New York, 500 F.Supp.2d 128, 145-146 (N.D.N.Y. 2007) upholding the Oneida Nation's right to bring fair compensation claims for the difference between the $.50 per acre that the Oneida Nation received when it sold approximately 300,000 acres to the State of New York in 1795 and the $3.53 per acre obtained by the State when it shortly thereafter resold such lands to white settlers. The State of New York has appealed the fair compensation holding to the Second Circuit, Court of Appeals, on the issue of whether a "fair compensation" claim can stand alone or whether it is in fact dependent on a "possessory claim" and, therefore, should be precluded under the Supreme Court laches ruling in Sherrill, supra, and the similar Second Circuit holding in Cayuga Indian Nation, supra.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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