Congress passed the first Indian Trade and Intercourse Act, known as the “Nonintercourse Act,” in 1790, pursuant to Congress's power under Article I, Section 8, clause 3 of the Constitution, which gives Congress the power “to regulate Commerce ․ with the Indian Tribes.” Act of July 22, 1790, ch. 33, § 4, 1 Stat. 137, 138. As the Supreme Court described it, “the Act bars sales of tribal land without the acquiescence of the Federal Government.” Sherrill, 125 S.Ct. at 1484. Successive versions of the Act have been continuously in force from that time to the present day. See Rev. Stat. § 2116, 25 U.S.C. § 177.
On November 11, 1794, the Six Iroquois Nations 1 entered the Treaty of Canandaigua with the United States. 7 Stat. 44. This treaty acknowledged the Original Reservation the Cayugas retained in the 1789 treaty with New York, and promised the Cayugas that the land would remain theirs until they “chose to sell the same to the people of the United States who have the right to purchase.” Id. art. II, 7 Stat. at 45. On June 16, 1795, William Bradford, then Attorney General of the United States, issued an opinion concluding that, under the 1793 version of the Nonintercourse Act, no Indian land sale was valid, nor could the land claims of the Six Iroquois Nations be extinguished, except pursuant to a treaty entered into by the Federal Government. See Cayuga Indian Nation v. Cuomo, 565 F.Supp. 1297, 1305 (N.D.N.Y.1983) (“Cayuga I ”).