# United States v. Oneida Nation of New York > United States Court of Claims · May 17, 1978 · 576 F.2d 870 URL: https://www.frixlaw.com/law-library/cases/8596279 ## Case - **Full name:** UNITED STATES v. THE ONEIDA NATION OF NEW YORK - **Court:** United States Court of Claims - **Decided:** May 17, 1978 - **Citations:** 576 F.2d 870; 45 A.L.R. Fed. 655; 217 Ct. Cl. 45; 1978 U.S. Ct. Cl. LEXIS 148 - **Precedential status:** Published - **Opinion:** Concurring in part by Nichols - **Judges:** Davis, Kunzig, Nichols - **Cited by:** 18 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8596279 ## How later opinions describe it (automated extraction) - holding federal government assumed fiduciary relationship with Oneidas arising from pre-Constitutional treaties and dealings ## Opinion text Nichols, Judge, concurring and dissenting: I concur in Parts I and II of the opinion, and in much that is ably said elsewhere. Respectfully I dissent from the main holding, that the Continental Congress acted dishonorably in not attempting to dissuade the Oneida Indians from yielding to the importunities of New York, or to exert moral suasion on the state itself. I find this proposition to translate anachronistically to the 18th century notions of honor and dishonor respecting Indians that originated in the 19th or 20th. I find significant the entire absence of any contemporary expression that the Congress acted dishonorably in this affair, nor do I believe that an informed person of honor would have so stated if he had adverted to the matter. The Oneidas complained of being hoodwinked by New York, but they did not accuse the Congress of being an accomplice. The idea that Congress should assume towards Indians the role of case worker to welfare client, teacher to pupil, or guardian to ward, had not yet been born. General expressions about or to the Oneidas, as wartime allies, would not have implied a relationship of that kind, nor would it have been seen as implied in the Treaty of Fort Stanwix. Congress, I believe, intended to respect the independence of the Oneidas, their territorial integrity, and their ability to manage their own affairs. I wish to express my gratitude for the portion of Part V that acknowledges that what we are called on to do is to pass a moral judgment. That is the starting point of my analysis. Phrases such as "fiduciary role” and "special *68 relationship” may make lawyers among us more comfortable, though they have no solid backing in legal or equitable rights and duties. Also, use of such language alluding to a moral judgment as if it were a technical rule of law, may raise fewer hackles among those, if any there be, who honor the memory of the Continental Congress. The concept of a "special relationship” was I take it first floated in Oneida Tribe of Indians of Wisconsin v. United States, 165 Ct. Cl. 487 , cert. denied, 379 U.S. 946 (1964), in which we insisted that a "special relationship” existed, only to hold that the United States in that case (having no relation or resemblance to this) did all the relationship, special or other, required of it. All it means is that though there is no contract or treaty obligation, or formal trusteeship, honor may oblige the United States to take steps to protect Indians, who have slipped into a dependence on the honor of the United States, by one means or another. What honor requires depends on circumstances and will vary from case to case according to the conscience of the court. In that case, the United States had attempted some protection, though ineffectual, and it was held honor was satisfied. Around the turn of the century there was a strong reaction against passing moral judgments on treaties, or legislative enactments, actual or proposed. United States v. Choctaw Nation, 179 U.S. 494 (1900), reversing 34 Ct. Cl. 17 (1899)(note dissents below); Western Cherokee Indians v. United States, 27 Ct. Cl. 1 (1891), aff’d sub nom United States v. Old Settlers, 148 U.S. 427 (1893); Montgomery v. United States, 49 Ct. Cl. 574 (1914). I am inclined to believe that at that time any jurisdictional legislation that called for such moral judgments, without ambiguity, would have elicited a flat declaration that such a role was rejected as unsuited for an Article III court. It might have been reluctantly accepted for purely advisory adjudications such as we refused to entertain even when they involved legal rights after Glidden Co. v. Zdanok, 370 U.S. 530 (1962). Now we pass moral judgments every morning before breakfast, and never wonder, as past courts would have, whether we are good at it. *69 Though the role is relatively new for courts, historians have long been assessing the morality of statesmen, warriors, and prelates of the past. They have learned how to do it in a more sophisticated way than is often found in court opinions. For example, let me quote from Macaulay’s essay on Machiavelli— Every age and every nation has certain characteristic vices, which prevail almost universally, which scarcely any person scruples to avow, and which even rigid moralists but faintly censure. Succeeding generations change the fashion of their morals, with the fashion of their hats and their coaches; take some other kind of wickedness under their patronage, and wonder at the depravity of their ancestors. It pleases us to consider the Indian a protected ward as to his present needs, and a wronged victim as to the past. We wonder at the depravity of our ancestors because they had a different view. Our ancestors might have wondered at our depravity could they have enjoyed the gift of prophesy. The whole essay is a superb example of Macaulay’s technique in passing moral judgment on the past, and I cannot recommend it too highly. But it has not been universally accepted. Lord Acton, of the generation that followed Macaulay, may be taken as representing a contrary approach. He is best known to Americans today by the famous quote, become a cliché, about absolute power corrupting absolutely. This he tossed off as an aside in a personal letter to the Reverend Mandell Creighton, who had displeased Acton by being too easy on long dead Popes in his "History of the Papacy.” Acton took the occasion to expound his favorite thesis, which was that it is the duty of the historian to avenge the evil and wrong of the past, by harsh denunciation of its principal actors. In doing this, his standards are those of the present, because right and wrong do not change, like fashions in coaches and hats. Thus he would judge everyone from Attila the Hun to Zoroaster strictly by the standards of a Victorian English gentleman. See Essays on Freedom and Power, Lord Acton, selected by Gertrude Himmelfarb, Gloucester, Mass. 1972. We have a good deal of Actonism with us today. Thus, we do not own slaves, or countenance others owning them, but *70 Thomas Jefferson did, and therefore his memory is deemed by many not worthy of respect or veneration. Ironically, Acton himself defended slavery in an essay written in 1861, and therefore by his own technique of moral admeasurement, he was wicked too. Much of our contemporary Actonism is based on sheer ignorance, or the view that history is "not relevant,” but Acton himself was enormously learned. Our national sport of discovering and denouncing the depravity of our ancestors has both knowledgeable and ignorant practitioners. A certain amount of Actonism may well be deemed required, if not in all Indian Claims Commission adjudications, assuredly in those based on the "fair and honorable dealings” clause. I do not agree, however, that they must be kept free from any taint of Macaulayism. Anachronistic relation back of newly emerging ideas to as little as 24 years in the past, is rejected in Gila River Pima-Maricopa Indian Community v. United States, 190 Ct. Cl. 790, 801 , 427 F.2d 1194, 1200, cert. denied, 400 U.S. 819 (1970) (Davis, J. concurring). The court opinion here, with all its ability and learning, I find to be pure Acton. I turn to what one influenced by Macaulay might deal with differently, and to whether he might reach a contrary conclusion. One obvious difference is that Macaulay, but not Acton, would ask what was the reaction of informed contemporaries to the alleged iniquity. Macaulay makes a brilliant use of this technique in the Machiavelli essay, already cited, where he shows that there was no adverse criticism, on moral grounds, of Machiavelli’s widely read book, The Prince, except on the part of readers of other countries, or other centuries. The parties to the instant case have carefully culled the debates of the Continental Congress, and I take it other relevant contemporary records and writings, without discovering any criticisms of the instant nonfeasance of the Continental Congress, and I conclude there were none. An Actonian would assign to this silence the explanation that everyone else was as morally obtuse as the Congress. It further appears that the Oneida Indians soon complained of being overreached by the State of New York, but made no complaint of being deserted by their supposed Big Brother, the Continental Congress. We have *71 treated absence of complaint by Indians as significant; e.g., Seneca Nation of Indians v. United States, 173 Ct. Cl. 912, 916 (1965). The parties preparing this case presumably were on notice of that view. Next one may turn to the alleged "special relation.” During the war, the Continental Congress hoped to retain all the Six Nations as allies, a hope that was realized only as to the Oneidas and Tuscaroras. It appears to me that the promises made were of the kind that a nation in arms might normally make to an ally, or a nation hoped to be recruited as an ally. Their territorial integrity would be safeguarded. In 1777 (finding 15) they were told that as trusty friends "they would be protected and that their welfare should at all times be considered as the welfare of the Confederation [the United States].” But there was not, as might be expected there would not be from an ally, any undertaking to treat them as incompetents needing to be put under tutelage. I believe a reasonable 18th century person would have concluded that the Continental Congress meant to treat the Oneidas as an independent, sovereign nation. There was an express undertaking mentioned in the instructions to the commissioners who negotiated the Treaty of Fort Stanwix, that the Oneidas could rely that their land would be "reserved for their sole use and benefit [territorial integrity] until they may think it for their own advantage to dispose of the same.” [Emphasis supplied.] (Finding 38.) This certainly implies not only that the right of the Oneidas, as an independent sovereign nation, to dispose of their land, was respected, but also that the Oneidas were considered capable of rational thought as to what terms for disposal were to their advantage. These instructions might well be read into the Treaty of Fort Stanwix and be considered a part thereof, but they are far removed from the Trade and Intercourse Act of July 22, 1790, 1 Stat. 137 , by which the new Government established under the Constitution reduced Indians in the national territories to a state of tutelage in part at least, depriving them of some attributes of sovereignty, i.e., the right to dispose of their lands as a sovereign normally might do if he saw fit. *72 Plaintiff quotes the House Report on the Indian Claims Commission Act, H.R. No. 1466, 79th Cong. 2d Sess, at 1358, concerning the fair and honorable dealings clause, as follows: This extension of jurisdiction is believed to be justified by reason of the fact that we have always treated the Indian Tribes as non-sui juris and have set ourselves up as their guardians. In this relationship many claims, not strictly legal, but meritorious in character have developed * * *. If "we” means the United States Government under the present Constitution, the statement with the word "always” is true, for the Trade and Intercourse Act, supra, the first step in subjection to guardianship, was enacted almost immediately. If "we” includes the Continental Congress, it is wrong. The latter’s object was to "manage” affairs with Indians, "making war and peace, purchasing certain tracts of their lands, fixing the boundaries between them and our people, and preventing the latter settling on lands left in possession of the former.” Nothing was said about Indians being non-sui juris or under guardianship. Report of Committee on Southern Indian Affairs, 1787, finding 84. Thus it appears to me to be highly questionable whether the legislative intent ever was that a "fair and honorable dealings” claim could properly arise out of the feasance or nonfeasance of the Continental Congress. The change of policy in the Trade and Intercourse Act was justified by circumstances, no doubt, but it was not the kind of subordination that would have been proposed to a touchy ally during a state of war. It was a case in 1790 of locking the barn after the horse was stolen, so far as concerned the Oneidas, but it does not establish that the previous policy was not in good faith. There has been much discussion by the Commission and by counsel before us as to the meaning of Art.IX of the Articles of Confederation. Chairman Kuykendall holds that the "sole and exclusive power” in the Continental Congress of "regulating the trade and managing all affairs with the Indians, not members of any of the States” does not include organized tribes such as the Oneidas whose territories were within the boundaries of one of the original states. 37 Ind. Cl. Comm. 522 and ff. The court sees fit not to challenge *73 this, and it seems to me the better view. Whether this is so or not, the proviso that "the legislative right of any state within its own limits be not infringed or violated,” all agree means among other things that the state’s preemption right, i.e., its right to buy Indian land if Indians wished to sell, was supreme. See 37 Ind. Cl. Comm, at 546 and Madison letter, finding 83. Thus the state was guaranteed a right exactly corresponding to that of the Oneidas: if the Indians wished to sell, they could sell, and if the state wished to buy, it could buy. I agree with the court, however, that the interpretation of Article IX is not of great importance, but I say so for a different reason, I hope a truly Actonian reason. If Article IX committed the United States to inaction which but for Article IX was dishonorable in the circumstances, then it was dishonorable to enter into any such commitment. Moreover, if the inaction of the United States was due to its weakness, then it was dishonorable of the United States to allow itself to be so weak, particularly vis-a-vis one of its own component states. I think the true answer is that the commitment or "special relationship” was entered into during a state of war and related primarily to contingencies that would arise in war. It did not address at all the contingency that unless the United States intervened, a peaceable buyer might overreach the Oneidas in a negotiation entered into peaceably, because they were incapable of evaluating their own best interests. This contingency could not have been stated expressly during the war without outraging the Oneidas, who would have viewed it as an attempt to reduce them to a dependent and subordinate position, which the Continental Congress at that point had no moral or legal right to assert. Therefore, it cannot be implied. The true commitment was an alliance possessing the attributes in relationship of the parties that alliance normally carries. The true issue is, without regard to Article IX, what if any reciprocal obligation did the benefit derived from the alliance carry over with it to a subsequent period of peace? The court contrasts the strong stand the Continental Congress took to ward off the interference of New York in the 1784 peace negotiations with its inaction later. Refuting a similar contention in Six Nations v. United *74 States, 173 Ct. Cl. 899, 907 (1965), we said "[T]his meant, however, no more (for lands within a state’s boundaries) than that the making of peace should precede state-Indian business transactions and that the Union’s problems should be settled before those of the states.” It seems apparent to me that in 1784 New York was intruding into a jurisdiction clearly demarked for the Congress, the making of war and the negotiation of peace. See Madison letter, finding 83. On the later occasions it was, apart from chicanery, exercising a legal right. The suspicion arises that both the commission majority and the court would have had the Continental Congress engage in a strong program of jawboning. (This word is absent from dictionaries of recent date, but our ancestors used the word "jaw” in a related sense, i.e., to scold.) The relationship of jawing or jawboning to honor is somewhat elusive. Some statesmen believe that honor requires them to do it when they lack the legal or military power to take effective action to secure an object they believe to be important. Others contend that honor requires them to keep silent under such circumstances. It is my impression that the 18th century mind would generally prefer the latter alternative; indeed the common recourse to jawing or jawboning is somewhat of a modern growth. The Congress was supposed to intuit that Governor Clinton would defraud the Indians. Apart from jawboning, or as a means to effectuate it, the commission and the court majority would have had the Congress send a representative to the 1785 and 1788 negotiations between the Oneidas and New York. It would appear he should have been a lawyer and his presence with the tribe would have been required permanently in view of the tribe’s penchant for selling or leasing land to private parties. This was what triggered New York to attempt to exercise its preemption rights in 1785, (finding 54), and again in 1788 (finding 65). It appears to me that the idea of having a lawyer on the spot, useful as it might have been, was not one that would have occurred to the 18th century mind as an obligation of honor imposed by the circumstances. It is a product of the paternalism towards Indians of later centuries, related back to the 18th century by an Actonian type of moralistic *75 anachronism. Similarly, no doubt, it would have been a fine thing to send a doctor to care for the health of the Oneidas, a school teacher so they could read and write, or a missionary. (The missionary it seems they had.) To mulct the United States for the losses supposedly caused by the lack of a lawyer would seem no more reasonable than to mulct it for Oneida deaths in an epidemic resulting from lack of a doctor. Even under 20th century notions, dishonor does not attach to not providing benefits of this kind, unless they are contracted for. Gila River Pima-Maricopa Indian Community v. United States, supra. Before imputing dishonor to the Continental Congress for not providing these functionaries, it would seem a Macaulayite analysis would require consideration whether, to provide them would occur to an 18th century statesman as having been contracted for. If the Indians, invoking the alliance, had asked for a lawyer and the Congress had refused one, the case then might have been different. But it is not an 18th century, but a 20th century idea, to deem it mandatory for government to thrust on people benefits they have not asked for and possibly do not want. Finally, I must add that the United States has honorably waived its sovereign immunity, waived the statute of limitations, and exposed itself to suits not even founded on law or equity. Thus it is to be mulcted for a wrong committed by another sovereign, to which it was not even an accomplice. New York, that perpetrated the wrong, has not waived sovereign immunity, nor the statute of limitations, nor can it be sued on moral grounds. There is a visible and obvious dishonor here, but it is not that of the United States. I dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8596279. Public record. Not legal advice.