1.4 C. Aboriginal Title

• Jurisdiction: New York

C. Aboriginal Title

Aboriginal title refers to the inherent aboriginal right to land. Aboriginal title is the term commonly used by courts to describe Native American tribal rights in real property predating the settlement of the United States. Typically, rights of aboriginal titles are asserted by a tribe rather than by individual members of a tribe. Aboriginal title has been a recurring problem in New York and other eastern states. Although the sovereign is considered the primary source of title, the sovereign’s rights can be subject to aboriginal title held by the native. That title has been held to be a right of possession only, subject to the sovereign’s preemptive rights.¹⁰ New York State lands have been the source of several landmark decisions regarding aboriginal title; most notable is the Oneida case, which was the first modern-day Native American land claim case to be filed in federal court.¹¹

It is important to distinguish between the two types of title to North American Indian lands. The first is aboriginal title. Such title requires actual, continuous and exclusive possession of the land. Proof of voluntary abandonment of land held by aboriginal title is a defense to subsequent claims concerning the land.¹² The second type of title to North American Indian lands is recognized or reserved title. If Congress reserves title in land to a tribe, such title may then be divested only by Congress.

In Cayuga IV, the U.S. District Court for the Northern District of New York relied upon this distinction between aboriginal and reserved title, holding that notwithstanding the Cayuga’s possible abandonment of the lands in controversy, abandonment could not defeat a claim to lands that were reserved to the Cayuga Indian Nation by the 1794 Treaty of Canandaigua.¹³ The court held that the treaty’s plain language reserved the lands in question to the Cayuga and that, since the Cayuga possessed treaty-recognized title to the land, only Congress could divest it.¹⁴

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Notes:

^[10] . See United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941); Johnson v. McIntosh, 21 U.S. 543 (1823); Fletcher v. Peck, 10 U.S. 87 (1810).

^[11] . Oneida Indian Nation v. County of Oneida, 617 F.3d 114 (2010), cert. denied, 555 U.S. 970 (2011).

^[12] . Cayuga Indian Nation v. Cuomo...