Amicus Curiae Brief — Countyof Oneida v. Oneida Indian Nation of NY

Supreme Court, U.S.

fk ILE OD

Nos. 83-1065 and 83-1240 JUN 15 1984

ALEXANDER L. STEVAS

Supreme Court of the United States :

OCTOBER TERM, 1983

THE COUNTY OF ONEIDA, NEW YORK, and

THE COUNTY OF MADISON, NEW YORK,

Petitioners,

V.

THE ONEIDA INDIAN NATION OF NEW YORK STATE, et al.,

Respondents.

THE STATE OF NEW YORK,

Petitioner,

V.

THE ONEIDA INDIAN NATION OF NEW YORK STATE, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF OF C. H. ALBRIGHT AND OTHER

SOUTH CAROLINA LANDOWNERS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

JOHN C. CHRISTIE, JR., J. D. Topp, JR.

Counsel of Record MICHAEL GIESE

J. WILLIAM HAYTON LEATHERWOOD, WALKER,

STEPHEN J. LANDES Topp & MANN

LUCINDA O. MCCONATHY 217 E. Coffee Street

BELL, BoyD & LLOYD Greenville, SC 29602

1775 Pennsylvania Ave., N.W. 803/242-6440

Washington, D.C. 20006 DAN M. Byrp, JR.

202/466-6300 MITCHELL K. BYRD

BYRD & BYRD

240 East Black Street

Rock Hill, SC 29730

Dated: June 15, 1984 808/324-5151

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

BEST AVAILABLE COPY *

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICI CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. The Oneidas’ Claim Should Be Barred Because

it Was Not Brought Until 175 Years After The

Conveyance At Issue

A.

B.

C. The Claim of the Oneidas is Barred Under

the Doctrine of Laches

. The United States Ratified The 1975 Convey-

ance To New York

III. The Oneidas’ Claim Presents Solely A Non-

Justiciable Political Question

CONCLUSION

ii

TABLE OF AUTHORITIES

CASES Page

Arizona v. California, 103 S.Ct. 1882 (1983) .......... 12, 22

Baker v. Carr, 569 U.S. 186 (1962) ........................... 25

Barker v. Harvey, 181 U.S. 481 (1901) —.....00000..... 11, 12

Beecher v. Wetherby, 95 U.S. 517 (1877) ................. 10, 26

Buffalo, Rochester & Pittsburg Railroad Co. v.

Lavery, 27 N.Y.S. 443 (App. Div. 1894), aff'd

on opinion below, 149 N.Y. 576, 43 N.E. 986

SETUP cccupsennvntensenenstnatpiiainignmmtibtiiasainieamiadias 17

Burnett v. New York Central Railroad Co., 380

8 Re Se EAS Baad 6

Catawba Indian Tribe v. South Carolina, No. 80-

2060 (D.S.C. June 14, 1982) .................0.0.. eee 4

Catawba Indian Tribe v. South Carolina, 718 F. 2d

1291 (4th Cir. 1983) .............. sniteigsialidaiidliiicaaamiias 4

Cherokee Nation v. Southern Kansas Railway Co.,

RE 14

Confederated Salish and Kootenai Tribes v. United

States, 401 F.2d 785 (Ct. Cl. 1968), cert. denied,

bt Fo aa Se 22

Creek Nation v. United States, 318 U.S. 629

TEE ccnceccssieccsenmsiidtetssensaiiiniaminniadieaee 14

DeCoteau v. District County Court, 420 U.S. 425

GIFU ccinssasensiemnsensttitntndinntinbianeieiaiaiiea 18, 19

Delaware Tribal Business Committee v. Weeks, 430

FF a ey) an room 27

Dennison v. Topeka Chambers industrial Develop-

ment Corp., 527 F. Supp. 611 (D. Kan. 1981),

aff'd, 724 F.2d 869 (10th Cir. 1984) 2000. 28

Epps v. Andrus, 611 F.2d 915 (1st Cir. 1979)........ 16

Ewert v. Blue Jacket, 259 U.S. 129 (1922) .......... 15, 16

Federal Power Commission v. Tuscarora Indian

Nation, 862 U.S. 99 (1960) ................................... 21

Felix v. Patrick, 145 U.S. 317 (1892) 2.000. 13, 14, 16

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1809)...... 9

Gilligan v. Morgan, 413 U.S. 1 (1978) ...........00..... 25

Halstead v. Grinnan, 152 U.S. 412 (1894) 13

Independent Bankers Association of America v.

Heimann, 627 F.2d 486 (1980) 0000. 18

iii

TABLE OF AUTHORITIES—Continued

Page

Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543

OES ST 8-10

Joint Tribal Council v. Morton, 528 F.2d 370 (1st

Cir. 1975) . =_ . ..12, 16, 17

Lane v. Pueblo of Santa ‘Rosa, 249 US. “110

(1919) . —_ lcisibiiiieiadaiiiniatiniiees 14

Leffingwell ° v. ~ Warren, 67 US. “(2 Black) 599

EES LL 7

Lewis v. Marshall, 30 U.S. (5 Pet.) 470 (1881). 7

Lone Wolf v. Hitchcock, 187 U.S. 553 (1908)........ 24-26

Mashpee Tribe v. New Seabury Corp., 427 F. Supp.

899 (D. Mass. 1977) .......... EE 16

Mattz v. Arnett, 412 U.S. 481 (1978) .............. —a 18

McIntire v. Pryor, 173 U.S. 38 (1899) .................... 15

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130

EEE EE 24

Mitchel v. United States, 34 U.S. (9 Pet.) 711

EES ET oe 9, 10

Mohegan Tribe v. ‘Connecticut, 638 F.2d 612 (2d

Cir. 1980), cert. denied, 452 U.S. 968 (1981).... 23

Morton v. Mancari, 417 U.S. 535 (1974) ............. 25

Narragansett Tribe v. Southern Rhode Island Land

Development Corp., 418 F. Supp. 798 (D.R.I.

ne aerececemetcnnetnnenmnmnecnnenen 15, 16

Oneida Indian Nation v. County of Oneida, 414

EEE 2,9

Oneida Indian Nation v. County of Oneida, 719

F.2d 525 (2d Cir. 1983) . seepinatineemenecenl passim

Oneida Indian Nation v. County of Oneida, 434

F. Supp. 527 (N.D.N.Y. 1977) ............... satianisiieandl passim

Oneida Indian Nation v. United States, 43 Ind. Cl.

a 28

Order of Railroad Telegraphers v. Railway Ex-

press Agency, 321 U.S. 342 (1944) 000. 6

Pechanga Band v. Kacor Realty, Inc., 680 F.2d 71

(9th Cir. 1982), cert denied, 108 S.Ct. 817

(1988) .......... ESS AE ee 21

Rosebud Sioux Tribe v. Kneip, 4380 U.S. 584

TT la eriigeminens entiinemene 18, 20, 23, 24

iv

TABLE OF AUTHORITIES—Continued

Page

Schaghticoke Tribe v. Kent School Corp., 423

F. Supp. 780 (D. Conn. 1976) —......................... 14, 15

Schrimpscher v. Stockton, 183 U.S. 290 (1901) ...... 14

Seneca Nation v. Christy, 126 N.Y. 122, 27 N.E.

275 (1891), writ of error dismissed on other

grounds, 162 U.S. 283 (1896) —......................... 17

Seneca Nation v. United States, 173 Ct. Cl. 912

Te 17

Shoshone Tribe v. United States, 299 U.S. 476

ee 18, 23

Solem v. Bartlett, 104 S.Ct. 1161 (1984) ....... 18-20, 23, 25

Summa Corp. v. California, 104 S.Ct. 1751 (19%4} . 11, 12

Teall v. Schroder, 158 U.S. 172 (1895) _...... 7

Tee-Hit-Ton Indians v. United States, 348 U.S. 272

a a a 24, 26

United States v. Cook, 86 U.S. (19 Wall.) 591

a as ee 9,10

United States v. Creek Nation, 295 U.S. 108

SN 20-22, 24

United States v. Fernandez, 35 U.S. (35 Pet.) 3038

a ee 9

United States v. Midwest Oil Co., 236 U.S. 459

GTETEIITED conbisenssssnababeteiensasitaraiiaiabaamesentiintaanahalilemiamlata 24

United States v. National Gypsum Co., 141 F.2d

Se Ge ECD iicneentesetinieennttieneniinn 17

United States v. Northern Paiute Nation, 490 F.2d

RG ey aan 18

United States v. Sandoval, 231 U.S. 28 (1913)... 21

United States v. Santa Fe Pacific Railroad, 314

es EEE ccccnesiiniiidivcnesinntsitenciaintancinciadaiseibaiihall 11, 17, 22, 26

United States v. Sioux Nation, 448 U.S. 371

a he ee ee eee 24-26

United States v. Tillamooks, 329 U.S. 40 (1946)... 26

United States v. Title Insurance and Trust Co., 265

Ee a ee ee 11, 12

Wagg v. Herbert, 215 U.S. 546 (1910)... 15

Williams v. City of Chicago, 242 U.S. 484 (1917). 10, 11

Vv

TABLE OF AUTHORITIES—Continued

FEDERAL STATUTES Page

Trade and Intercourse Act, 25 U.S.C. § 177 (1976) ..passim

Catawba Indian Tribe Division of Assets Act,

Catawba Termination Act of 1959, 25 U.S.C.

§§ 931-938 (1976) siesta ta tana 3,4

Rhode Island Indian Claims Settlement Act of

1978, 25 U.S.C. §§ 1701-1716 (1978) .. _ 17

Maine Indian Claims Settlement Act of 1980, 25

U.S.C. §§ 1721-1735 (1980) , 17

TREATY

Treaty of Nation Ford, March 13, 1840, South

Carolina Archives, Misc. Records Book N, at

236 ; 2,4

In THE

Supreme Court of the United States

OCTOBER TERM, 1983

Nos. 83-1065 and 83-1240

THE COUNTY OF ONEIDA, NEW YORK, and

THE COUNTY OF MADISON, NEW YORK,

. Petitioners,

THE ONEIDA INDIAN NATION OF NEW YORK STATE, et al.,

Respondents.

THE STATE OF NEW YORK,

Petitioner,

Vv.

THE ONEIDA INDIAN NATION OF NEW YORK STATE, et al.,

Respondents.

On Writ of Certiorari to the United States Court of Appeals

for the Second Circuit

BRIEF OF C. H. ALBRIGHT AND OTHER

SOUTH CAROLINA LANDOWNERS AS AMICI CURIAE

IN SUPPORT OF PETITIONERS

INTEREST OF THE AMICI CURIAE

This brief is filed on behalf of forty-six private land-

owners ' who are named defendants in a lawsuit brought

1 The named defendants and successors thereto who have joined

in this brief include:

C.H. Albright, Ned M. Albright, David G. Anderson, Mrs.

Jessie G. Anderson, John W. Anderson, Jr., John Wesley

Anderson, W.B. Ardrey, Jr., Ardrey Farms, Ashe Brick Com-

pany, F.S. Barnes, Jr., Bowater Inc., Archie B. Carroll, Jr.,

2

in 1980 in the District Court of South Carolina by the

so-called “Catawba Indian Tribe, Inc.” (“the Cataw-

bas”). The Catawbas seek to avoid an 1840 transac-

tion * between the Catawbas and the State of South Caro-

lina and to be declared the owners of approximately

144,000 acres (225 square miles) of land now inhabited

by many thousands of non-Indians. The Catawbas contend

that the Trade and Intercourse Act‘ required federal ap-

proval or consent to the 1840 Treaty and that such fed-

eral approval or consent was lacking. In a manner simi-

lar to the Oneida case herein, the Catawbas allege that

the violation of a single federal statute gives them the

right to land which is now held by many thousands of

persons who were completely uninvolved in the alleged

violation and who relied upon the title of the state of

South Carolina in making their purchases.

Celanese Corp., Close Family Real Estate Trust, Duke Power

Co., R.A. Fewell, Jane Nisbet Goode, Mrs. Elizabeth Grimball,

Mrs. Pauline B. Gunter, Annie F. Harris, T.W. Hutchison,

Francis M. Mack, Jr., J.E. Marshall, Elizabeth N. Martin, Mary

T. McCorkle, W.A. McCorkle, Jr., Nisbet Farms, Inc., W. Oliver

Nisbet, W. Olin Nisbet, III, Mary Nisbet Purvis, Rebecca N.

Rencher, John S. Simpson, Robert T. Simpson, William R.

Simpson, Jr., Thomas B. Snodgrass, Jr., Southern Railway,

Springland Inc., Springs Mills, Inc., TCU, Inc., TC126 Inc.,

Tega Cay Recreation Company, Inc., Wachovia Bank and Trust

Company, Marshall E. Walker, Eugenia N. White, Hugh M.

White, Jr., Robert T. Yoder.

. 2 Consent for the filing of this amicus curiae brief has been re-

ceived from the parties. Copies of the consents have been filed

with the Court.

* The Catawbas allege that they occupied the land in issue “from

time immemorial” and that their ownership was recognized and

confirmed by treaties with Great Britain in 1760 and 1763. The

Catawbas concede that by the 1830’s nearly all of the land at issue

had been leased to non-Indians. In 1840 the Catawbas transferred

any interest they held in the land at issue to the State of South

Carolina by the Treaty of Nation Ford, March 13, 1840, the South

Carolina Archives, Misc. Records Book N, at 236. Neither the 1760

nor 1763 treaty prohibited the Catawbas from entering into the

1840 Treaty of Nation Ford.

* Now codified in part at 26 U.S.C. § 177.

3

These amici curiae have a critical interest in the pend-

ing case. The South Carolina landowners face the same

threat of losing their land as do the inhabitants of Oneida

and Madison Counties.’ Indeed, the amici may be in

more immediate jeopardy than the petitioners in this

appeal. The Catawbas have not styled their litigation as

a “test case” and have not limited the relief sought to

damages for a relatively short period of time. They have

brought their case in South Carolina as a defendant class

action seeking ejectment of thousands of people from land

that defendants and their predecessors have owned for

at least 140 years. The Catawbas seek to destroy the

land titles of these thousands of South Carolina citizens

and to recover trespass damages from 1840 to the present

time.

The land in issue in the Catawba case lies at the north-

ern border of South Carolina in York, Lancaster and,

perhaps, Chester Counties. It encompasses the city of

Rock Hill, the town of Fort Mill, and a number of smaller

communities, and is divided into thousands of separate

tracts. The Catawbas’ complaint names seventy-six in-

dividuals, companies and public entities as defendants

and as representatives of an uncertified putative defend-

ant class alleged to consist of more than 27,000 “persons

who assert an interest in any portion of the subject

lands.” Potential class members include thousands of

families, stores, warehouses, railroads, farmers, churches,

charitable organizations, lending institutions, manufac-

turers, public utilities, local governments and the state of

South Carolina.

The named defendants moved to dismiss the Catawbas’

complaint in the District Court on the grounds that a

1959 federal statute commonly referred to as the

“Catawba termination act” * had profoundly altered the

Catawbas’ legal status as a tribe able to assert the Trade

5 They also face the same counsel. Both the Catawbas and the

Oneida Indian Nation of Wisconsin are represented by the Native

American Rights Fund.

* 26 U.S.C. §§ 931-938.

4

and Intercourse Act and, as a matter of law, precluded

their claim. On June 14, 1982, Senior District Judge

Joseph P. Willson, sitting by designation, granted the

defendants’ motion for summary judgment and dismissed

the action.’ The court held that the Catawba termination

act barred the plaintiff's claim under the Trade and

Intercourse Act.

On appeal, the Fourth Circuit, in a two-to-one opinion,

reversed.* The Circuit Court held that the 1959 Act “did

not ratify the 1840 Treaty, extinguish the Tribe’s ex-

istence, terminate the trust relationship of the Tribe with

the federal government arising out of the Nonintercourse

Act, or make the state statute of limitations applicable

to the Tribe’s claim.” * In a strong dissent, Circuit Judge

Hall found that the 1959 Act terminated the trust rela-

tionship between the United States and the Catawbas

thereby making it impossible for the plaintiffs to estab-

lish a prima facie case under the Trade and Intercourse

Act and thereby rendering the state statute of limitations

applicable.*° On December 20, 1983 the Fourth Circuit

granted the defendants’ motion for a rehearing en bane.

That hearing was held on June 4, 1984.

If the Fourth Circuit does not sustain Judge Willson’s

interpretation of the Catawba Termination Act and re-

mands the case to the District Court, then the legal is-

sues raised on this appeal would be most relevant in

Catawba. Thus, whether the Catawbas have a private

right of action under Section 177 of the Trade and Inter-

course Act; whether statutes of limitation and principles

of abandonment and laches apply to the claim; whether

Congress has through subsequent conduct ratified the

questioned treaty; and, whether a case of this sort raises

non-justiciable political questions, could have a direct and

7 Catawba Indian Tribe v. South Carolina, No. 80-2050 (D.S.C.

June 14, 1982).

8 Catawba Indian Tribe v. South Carolina, 718 F.2d 1291 (4th

Cir. 1983).

® Jd. at 1300.

10 Jd. at 1301-03.

5

immediate bearing on the ability of many thousands of

people to remain on their land.

SUMMARY OF ARGUMENT

Several courts, including the District Court and Court

of Appeals in the Oneida case, have held that tribal land

claims are not barred by the passage of time. However,

this view does not find support in the Court’s decisions.

On the contrary, two lines of cases based on the concepts

of abandonment and laches demonstrate that this claim

should be barred in accord with a fundamental premise

of American jurisprudence that rights become fixed after

long periods of time. Abandonment applies because these

Indians have long ago given up their right of occupancy

to the land in question thereby causing absolute title to

vest in the current fee owners. The doctrine of laches ap-

plies because the tribes have for many years ignored any

right they may have had to sue for recovery of the land.

Any failure of the United States to supervise the 1795

Treaty has been rectified. The Court has held on numerous

occasions that the United States can at a later date ratify

earlier Indian land conveyances. Such ratification need

not be “plain and unambiguous” but can be derived from

a variety of sources. Here the subsequent jurisdictional

history of the land, the changes in population and actual

knowledge of the events by the United States demon-

strate ratification.

Finally, these cases are not justiciable since they raise

questions that must be decided by the political branches

of government. The decision whether to enforce the

Trade and Intercourse Act in any given situation was

left to the discretion of Congress and the executive

branch and that enforcement decision cannot be assumed

by the Court. The substantial problems raised by the

relief requested well over one hundred years after the

alleged statutory violation can now only be weighed and

determined by Congress."

11 These amici curiae are also in full agreement with the posi-

tions asserted by the Counties of Oneida and Madison in the brief

6

ARGUMENT

I. THE ONEIDAS’ CLAIM SHOULD BE BARRED BE-

CAUSE IT WAS NOT BROUGHT UNTIL 175 YEARS

AFTER THE CONVEYANCE AT ISSUE

A. Introduction

The single most striking feature of Eastern Indian

land claims is their antiquity. Virtually without excep-

tion, they arise out of transactions that occurred genera-

tions ago. Thus, they fall within the class of cases that

are normally barred by familiar rules concerning the pas-

sage of time. Obviously, the Oneidas cannot deny the

antiquity of their claims. What is at issue is the ap-

plicability of time-related defenses in these cases.

In Burnett v. New York Central Railroad Co.,” the

Court stated the reason for barring claims by the passage

of time:

Such statutes “promote justice by preventing sur-

prises through the revival of claims that have been

allowed to slumber until evidence has been lost,

memories have faded, and witnesses have disap-

peared... .”*

The Court has recognized from the earliest time that

these concepts are particularly important in the case of

land titles:

The best interests of society require that causes of

action should not be deferred an unreasonable time.

they have filed with the Court. Thus, these amici also contend that

the Oneidas do not have a cause of action under federai law, that

their claim is barred by the applicable statute of limitations, that

actions under the Trade and Intercourse Act of 1793 have abated

and that the doctrines of ratification and non-justiciability should

be applied as the Counties suggest. These amici also support the

position asserted by the State of New York concerning the inability

of an Indian tribe to assert a right of action under federal common

law or pursuant to the Trade and Intercourse Act.

12 380 U.S. 424 (1965).

18 Jd. at 428, quoting Order of Railroad Telegraphers v. Railway

Express Agency, 321 U.S. 342, 348-49 (1944).

7

This remark is peculiarly applicable to land titles.

Nothing so much retards the growth and prosperity

of a country as insecurity of titles to real estate.

Labour is paralyzed where the enjoyment of its

fruits is uncertain; and litigation without limit pro-

duces ruinous consequences to individuals.”*

The rights of thousands of landowners to their long-

held real property depend upon factual issues respecting

which it is impossible to produce live witnesses or direct

evidence by reason of the 175 year delay in bringing the

Oneida claim.“ For this reason, the claims such as are

asserted by the Oneidas and other tribes should be barred

by the passage of time in the same manner as other

claims.

While a number of lower courts, including the District

Court and the Court of Appeals in this case,'* have held

that such claims are not barred by the passage of time,

this view is not supported in the opinions of the Court.

On the contrary, two lines of decisions relating to aban-

donment and laches demonstrate that the Oneidas’ claims

should be barred by the long delay in their attempted

enforcement.

The decisions of the Court relating to abandonment

and laches are relevant in the present case for two rea-

sons: (1) they establish that Indians are not exempt from

the loss of claims by reason of their failure to assert such

claims for a long period of time and, therefore, there is

no reason to exempt Indians from the appropriate statute

14 Lewis v. Marshall, 30 U.S. (5 Pet.) 470, 477-78 (1831). See

also, Teall v. Schroder, 158 U.S. 172, 179 (1895); Leffingwell v.

Warren, 67 U.S. (2 Black) 599, 605-06 (1862).

15 For example, the trial court below relied upon the testimony of

an anthropologist to conclude that “no United States commissioner

was present .. . when the State purchased [the] land... .” Oneida

Indian Nation v. County of Oneida, 434 F. Supp. 527, 535 (N.D.N.Y.

1977) (J.A. 58a).

16 Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527,

542 (N.D.N.Y. 1977) (J.A. 45a), aff'd, 719 F.2d 525, 537-38 (2d

Cir. 1983) (J.A. 207a).

8

of limitations which would have otherwise barred their

claim more than 150 years ago;** and (2) the doctrines

of abandonment and laches, as distinguished from the

statute of limitations, may be applied directly in the

present case to bar the claim of Oneidas.**

B. The Claim of the Oneidas Has Been Abandoned

The doctrine of abandonment is a time-related defense

based upon the nature of Indian title. Under decisions of

the Court, Indians held a right to occupy and did not

hold fee title to their aboriginal lands. In the thirteen

original states, the fee to Indian property was in the

states and could be transferred, subject to the Indians’

right of occupancy. The present-day defendants derive

their title from the states and, therefore, the conveyance

by the states conveyed the fee title subject to any Indian

right of occupancy. This right of occupancy was lost if

the Indians no longer occupied the land for a period of

time. They were considered to have “abandoned” the land

in that situation. Since the Oneidas have been out of

possession of the land in issue for at least 175 years,

their right of occupancy has been abandoned and the

fee interests of the present owners are not burdened by

any Indian rights. Significantly, the acquisition of “ab-

solute title” by a fee holder as a result of such abandon-

ment does not require the approval of the United States.

The landmark case of Johnson v. McIntosh™ defined

the nature of Indian tribes’ interest in land as follews:

[I}ndian inhabitants are to be considered merely as

occupants, to be protected, indeed, while in peace, in

17In an effort to avoid repetition, the applicability of state stat-

utes of limitation is not addressed in this Brief. The issue is fully

addressed in the brief of Petitioners County of Oneida and County

of Madison.

18 These defenses were asserted in the pleadings in the present

case. Abandonment and laches were discussed by the District

Court. Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527,

541-42 (N.D.N.Y. 1977) (J.A. 7la-72a).

19 21 U.S. (8 Wheat.) 543, 591 (1823).

9

the possession of their lands, but to be deemed in-

capable of transferring the absolute title to others.

In Fletcher v. Peck,” the Court recognized that the

thirteen original states held the fee subject to any Indian

right of occupancy and this fee could be conveyed by the

states. Fletcher v. Peck involved land located in Georgia

which had been transferred by the state prior to the

termination of the Indian tribe’s right of occupancy. The

Court said:

It is the opinion of the court, that the particular

land stated in the declaration appears, from this

special verdict, to lie within the state of Georgia,

and that the state of Georgia had power to grant it.

The majority of the court is of opinion that the

nature of the Indian title, which is certainly to be

respected by all courts, until it be legitimately ex-

tinguished, is not such as to be absolutely repug-

nant to seisin in fee on the part of the state.”

In Johnson Vv. McIntosh, the Court recognized that the

grants of a fee to Indian land “have been understood by

all, to convey a title to the grantees, subject only to the

Indian right of occupancy.”

It has long been recognized by the Court that upon

abandonment, the right of possession attaches itself to the

fee without further grant. The title of the fee owners

is complete without any conveyance that could or would

violate the provisions of the Trade and Intercourse Acts.

For example, in United States v. Cook,™ the Court held

2010 U.S. (6 Cranch) 87 (1809).

21 Jd. at 142-3. In its previous decision in this case, the Court

recognized that the fee to the real estate had been in the state of

New York. Oneida Indian Nation v. County of Oneida, 414 U.S.

661, 670 (1974).

22 21 U.S. (8 Wheat.) 543, 574 (1823).

23 86 U.S. (19 Wall.) 591, 593 (1873). See also United States v.

Fernandez, 35 U.S. (10 Pet.) 303, 304-05 (1836) ; Mitchel v. United

States, 34 U.S. (9 Pet.) 711, 746 (1835).

10

that “[t]he possession, when abandoned by the Indians,

attaches itself to the fee without further grant.” Thus,

even if a cession or transfer would be within the terms

of the Trade and Intercourse Acts, there is no prohibi-

tion in these Acts against the loss of the right of occu-

pancy by abandonment.

The doctrine of abandonment was applied by the Court

in a case that has direct bearing on this and other tribal

claims. In Williams v. City of Chicago, the Indian tribe

attempted to recover immensely valuable land which had

been physically reclaimed from beneath Lake Michigan.

The Court held that the tribe had no interest in the real

estate because of the doctrine of abandonment and that

the present owners of the fee held it free of the Indian

right of occupancy:

The only possible immemorial right which the Pot-

tawatomie Nation had in the country claimed as

their own in 1795 was that of occupancy. Johnson V.

McIntosh, 8 Wheat, 543. If in any view it ever held

possession of the property here in question we know

historically that this was abandoned long ago and

that for more than a half century it has not even

pretended to occupy either the shores or waters of

Lake Michigan within the confines of Illinois.

[When this [right of continued occupancy] was

abandoned all legal right or interest which both tribe

and its members had in the territory came to an

end. Johnson v. McIntosh, 8 Wheat. 548, 584, 586,

588; Mitchel v. United States, 9 Pet. 711, 745;

United States v. Cook, 19 Wall. 591, 592; Beecher v.

Wetherby, 95 U.S. 517, 525.*

24 242 U.S. 434 (1917).

2 Jd. at 487. The District Court in Oneida Indian Nation v.

County of Oneida, 434 F. Supp. at 541 (J.A. 7la) acknowledged that

the Indians’ right of occupancy could be lost through abandonment

but attempted to distinguish the Williams case by stating:

The small area of land [the Oneidas] now occupy lies within

the boundaries of the aboriginal land. Furthermore, they never

11

On April 17, 1984 the Court in Summa Corp. v. Cali-

fornia ™* reaffirmed that Indian tribes could lose their

right of occupancy through abandonment. The Court

cited, quoted and relied upon the cases of Barker v. Har-

vey," and United States v. Title Insurance and Trust

Co.” Both of those cases involved a 1851 statute which

provided for the adjudication of land claims. The statute

provided that tribal claims to real estate must be pre-

sented before a commission within a period of two years

or were to be regarded as abandoned. In Barker, the

Court held that the tribes’ failure to present their claims

constituted abandonment.” In Title Insurance and Trust

Co., the Court reaffirmed Barker and approved the lower

court’s finding that the Indians’ claim was “abandoned

and lost” and that the contested patent “passed the full

title, unencumbered by any right in the Indians.” ”

The very recent reaffirmation of these cases by the

Court clearly establishes that an Indian tribe can aban-

don its claim to the right of occupancy. These Indians

manifested an intent to leave the land on numerous occa-

sions, some instances of which had the explicit approval

acquiesced in the loss of their land, but have continued to

protest its diminishment up until today.

These purported distinctions have no validity. First, the Oneidas’

retention of a small area does not show any intention to retain a

huge area that they have not occupied for 180 years. Rather, the

move to a smaller area shows an intention to limit the area occupied

by the tribe. See United States v. Santa Fe Pac. R.R., 314 U.S. 339,

356-58 (1941). Second, as the District Court acknowledged, 434

F. Supp. at 536 (J.A. 60a), the earliest claim by the Oneidas to

the land in question was in 1840, and this claim could not be docu-

mented. This was approximately the same delay as the half century

found significant by the Court in the Williams case.

26 104 S.Ct. 1751, 1757 (1984).

27 181 U.S. 481 (1901).

28 265 U.S. 472 (1924).

2° Barker v. Harvey, 181 U.S. at 491-92.

* United States v. Title Insurance and Trust Co., 265 U.S. at 482.

12

of the United States. Further, such abandonment did

not require the consent of the United States and was not

forbidden by the Trade and Intercourse Acts.“ In addi-

tion, the doctrine of abandonment rests on the sound

policy ground of promoting the stability of land titles

thereby strongly supporting the defendants in this and

other land claim cases.”

C. The Claim of the Oneidas is Barred Under The

Doctrine Of Laches

The Court has also long held that the federal doctrine

of laches is applicable to Indians. The application of

laches is not dependent upon any state statute of limita-

tions or rigid deadline. As the Court has stated, laches

is based upon fundamental principles of justice:

The defense [of laches] itself is one which, wisely

administered, is of great public utility, in that it

31 See Joint Tribal Council v. Morton, 528 F.2d 370, 380-81 (1st

Cir. 1975).

32 The Court in Summa Corp. explained Title Insurance and Trust

Co. in a manner that shows particular sensitivity to long-established

land titles:

The Court declined an invitation to overrule its decision in

Barker because of the adverse effect of such a decision on land

titles, a result that counseled adherence to a settled inter-

pretation.

104 S.Ct. at 1757, citing United States v. Title Insurance and Trust

Co., 265 U.S. at 486. The language discussing the rule of abandon-

ment used by the Court in Title Insurance and Trust Co. and cited

with approval in Summa Corp. is also instructive:

The question whether that decision shal] be followed here or

overruled admits of but one answer. The decision was given

twenty-three years ago and affected many tracts of land in

California, particularly in the southern part of the State. In

the meantime there has been a continuous growth and develop-

ment in that section, land values have enhanced, and there have

been many transfers. Naturally there has been reliance on the

decision. The defendants in this case purchased fifteen years

after it was made. It has become a rule of property, and to

disturb it now would be fraught with many injurious results.

265 U.S. at 486. See also Arizona v. California, 103 S.Ct. 1382,

1392 (1983).

|

|

|

13

prevents the breaking up of relations and situations

long acquiesced in, and thus induces confidence in

the stability of what is, and a willingness to improve

property in possession; and at the same time it cer-

tainly works in furtherance of justice .... We have

had before us lately several cases in which this de-

fense has been presented, and in which the rules de-

termining it have been fully stated and its value

clearly demonstrated. Hamond v. Hopkins, 143

U.S. 224, and cases cited in the opinion; Felix v.

Patrick, 145 U.S. 317; Foster v. Railroad Co., 146

U.S. 88; Johnston v. Mining Co., 148 U.S. 360. The

length of time during which the party neglects the

assertion of his rights which must pass in order to

show laches varies with the peculiar circumstances

of each case, and is not, like the matter of limita-

tions, subject to an arbitrary rule.

If the Indians ever had any legal right to prosecute their

claim to the land at issue, that claim is now time barred.

The leading case in this Court applying laches to an

Indian land claim is Felix v. Patrick.“ In that case, the

defendant’s predecessor in title had obtained script from

a half-blood Indian entitling him to purchase land. There

was a federal statute expressly providing that “no trans-

fer or conveyance of such script should be valid.” The

half-blood Indian, Sophia Felix, continued to be a tribal

Indian until 1887, when shs became a citizen. The land

ultimately became a par. of the city of Omaha and

greatly increased in value. The Court held that the In-

dian heirs of Sophia Felix who attempted to claim the

land were barred by the doctrine of laches:

In reply to this defense of laches, plaintiffs rely

mainly upon the fact that Sophia Felix and her

heirs were at the time, and continued to be until

33 Halstead v. Grinnan, 152 U.S. 412, 416-17 (1894). For a more

recent example of the application of the doctrine of laches, see

Indep. Bankers Ass’n of America v. Heimann, 627 F.2d 486, 488

(D.C. Cir. 1980).

% 145 U.S. 317 (1892).

14

1887, tribal Indians, members of the Sioux nation,

residing upon their reservation in the State of Min-

nesota, and incapable of suing in any of the courts

of the United States.

But their very analogy to persons under guardian-

ship suggests a limitation to their pupilage, since

the utmost term of disability of an infant is but 21

years, and it is very rare that the relations of

guardian and ward under any circumstances, even

those of lunacy, are maintained for a longer period

than this.™

Thus, the Court indicated that laches would start to run

when Sophia Felix was able to sue on her own behalf.*

The Felix case demonstrates that laches starts to run

once the Indians or Indian tribes have access to the courts

to enforce their claims. The Court has long recognized

the right of tribes to assert any claims they may have to

enforce their interests in land.*” In Creek Nation V.

United States,** the Court said:

The tribes have not yet been dissolved, and they

have had, both as a general legal right and by vir-

35 145 U.S. at 330-31. See also, Schrimpscher v. Stockton, 183 U.S.

290 (1902).

36 A recent Indian land claim case discussing Feliz is Schaghti-

coke Tribe v. Kent School Corp., 423 F. Supp. 780, 785 n. 7 (D.

Conn. 1976) in which the district court held that laches did not

apply to an Indian tribe. The court attempted to distinguish Feliz

on the basis of the extraordinary relief demanded in that case.

Of course, in the present tribal land claims the attempt to recover

hundreds of thousands of acres after so many years is certainly a

request for “extraordinary” relief.

87 These amici do not concede in any way that the Oneidas had

any statutory or common law right to enforce this claim. As a

result, this argument is suggested only in the event the Court

reaches a contrary result on that issue.

38318 U.S. 629, 640 (1948). See also, Lane v. Pueblo of Santa

Rosa, 249 U.S. 110, 118 (1919) ; Cherokee Nation v. Southern Kan.

Ry. Co., 135 U.S. 641, 652 (1890).

15

tue of the very section of the 1906 Act under dis-

cussion here, the power to bring actions on their

own behalf. That the United States also had a right

to sue did not necessarily preclude the tribes from

bringing their own actions.

Thus, the respondents in the present case and the plain-

tiff tribes in the many pending claims have long had

access to the courts to assert the theories they now pre-

sent in this case. This failure to bring an action should

bar the claims by reason of laches.

The opinion of the Court primarily relied upon by

lower courts to hold that laches and other time-related

defenses do not apply to Indian tribes is Ewert v. Blue

Jacket.” In Ewert, an individual Indian sued to set

aside a transfer of land to an employee of the federal

Indian Affairs Department who was prohibited by statute

from purchasing land from Indians. The Court found the

claim of the plaintiff not to be barred by laches.

Ewert is distinguishable since there the defendant had

participated in the illegal act and was attempting to take

advantage of laches. Ewert is simply a traditional ap-

plication of the doctrine that only one acting in good

faith should be able to take advantage of laches. This is

confirmed by the Court’s action in requiring the defend-

ant to indemnify the plaintiff against payment of the

mortgage.*' The Court obviously assumed that the plain-

tiff Indian, after recovering the land, would have to pay

the mortgage to prevent foreclosure. The Court thereby

held that the mortgage was a valid and enforceable lien

8° 259 U.S. 129 (1922). Ewert was relied upon by the District

Court in this case. Oneida Indian Nation v. County of Oneida, 434

F. Supp. at 542 (J.A. 73a). See also, Schaghticoke Tribe v. Kent

School Corp., 423 F. Supp. 780, 784 (D. Conn. 1976) ; Narragansett

Tribe v. Southern Rhode Island Land Dev. Corp., 418 F. Supp. 798,

804-05 (D.R.I. 1976).

*© Wagg v. Herbert, 215 U.S. 546, 552-53 (1910); McIntire v.

Pryor, 173 U.S. 38, 54 (1899).

*! Ewert v. Blue Jacket, 259 U.S. at 138.

16

and that the mortgagee, who was an “innocent” party,

could have pleaded laches against a claim by the plaintiff

Indians. The present-day defendants in the tribal land

claim cases, who have acquired their interest in land in

good faith, should also be able to invoke the doctrine of

laches.

The district court below demonstrated a fundamental

misunderstanding of Ewert by stating that “[i]f a trans-

fer of Indian land is void under federal law, see, e.g.,

25 U.S.C. § 177, it cannot later be made valid by opera-

tion of state law.” ** This statement is clearly not sup-

ported by Ewert or any other opinion of the Court.

Laches may be applied even if the transfer “is void.” In

Felix, for example, the statute expressly provided that

the transfers were void yet the Court found the Indians’

claims barred by laches.** Further, the recognition of

laches in Felix is altogether independent of any “state

law” and can be applied by all courts.

Il. THE UNITED STATES RATIFIED THE 1975 CON-

VEYANCE TO NEW YORK

A major element of proof in a case brought under the

Trade and Intercourse Act is to demonstrate the United

States never approved or consented to the challenged

transfer.“ At issue in this case is what standard must

be applied to determine if the necessary federal scrutiny

has ever been given to what was otherwise an appro-

priate transfer of land in 1795 from the Oneidas to the

42 Oneida Indian Nation v. County of Oneida, 434 F. Supp. at 542

(J.A. 78a), citing Ewert.

*3 Further, as discussed supra pp. 8 to 10, the title of the

present owners does not depend upon any transfer of the fee by the

Indians. The present land owners hold their fee title independently

of any transfer by the Indians.

#4 Epps v. Andrus, 611 F.2d 915, 917 (1st Cir. 1979). See also,

Mashpee Tribe v. New Seabury Corp., 427 F. Supp. 899, 902 (D.

Mass. 1977); Narrangansett Tribe v. Southern Rhode Island Land

Dev. Corp., 418 F. Supp. 798, 803 (D.R.I. 1976) citing Joint Tribal

Council v. Morton, 528 F.2d 370 (ist Cir. 1975).

17

state of New York. The Second Circuit, citing language

in United States v. Santa Fe Pacific Railroad,“ held be-

low that for such ratification to be found it must be

shown to have been “plain and unambiguous.” The

Second Circuit misapplied Santa Fe and understated the

variety of ways in which the Court has found the neces-

sary congressional ratification of transactions with In-

dian tribes.

There are no artificial requirements concerning the

time and manner of congressional consent to Indian land

transfers. Consent can be found not only in “plain and

unambiguous” federal action contemporaneous with the

transfer, but also in legislation preceding and authoriz-

ing the transfer,’ in a general act, the circumstances of

whose enactment demonstrate consent,** or in a statute

enacted many years after the transfer which recognizes

the occurance or effect of the transfer.** Moreover, con-

gressional ratification of a disputed transfer of Indian

land need not be explicit.” It is well estabiishéd that

later congressional action confirming the effect of a dis-

puted transfer or mere congressional acquiescence in the

transfer can constitute ratification.™

*5 314 U.S. 339, 354 (1941).

*6 Oneida Indian Nation v. County of Oneida, 719 F.2d 525, 539

(2d Cir. 1983) (J.A. 236a).

*’ F.g., United States v. National Gypsum Co., 141 F.2d 859, 863

(2d Cir. 1944).

*8 F.g., Maine Indian Claims Settlement Act of 1980, 25 U.S.C.

§$§ 1721-1735; Rhode Island Indian Claims Settlement Act of 1978,

25 U.S.C. §§ 1701-1716.

#9 See, e.g., Seneca Nation v. United States, 178 Ct. Cl. 912

(1965). See also, Buffalo, Rochester & Pittsburg R.R. Co. v. Lavery,

27 N.Y.S. 443 (App. Div. 1894), aff'd on opinion below, 149 N.Y.

576, 438 N.E. 986 (1896).

5% See Seneca Nation v. United States, 173 Ct. Cl. 912, 915 (1965).

See also Senec.. Nation v. Christy, 126 N.Y. 122, 146, 27 N.E. 275,

282 (1891), writ of error dismissed on other grounds, 162 U.S. 283

(1896).

5! Joint Tribal Council v. Morton, 528 F.2d 370, 380-81 (1st Cir.

1975).

18

Ascertainment of consent can include examining the

conduct of the federal government over the years. For

example, in Shoshone Tribe v. United States, Justice

Cardozo looked to a course of governmental conduct as

retroactively validating the occupancy by the Arapaho

Indians of a portion of the Shoshone reservation. This

occupancy had occurred over a number of years with the

acquiescence of the United States. What was at issue in

Shoshone was the proper valuation date to apply to the

“tortious” taking of the Shoshone lands by the placement

of the Arapahoes on their reservation. The choices in-

cluded 1878, the date when the Arapahoes first came on

the land; 1891, the date when the Commissioner of In-

dian Affairs made a public statement in support of the

Arapaho occupation; and 1927, the date when Congress

passed a jurisdictional act. The Court held that by

relation back, 1878 was the taking date:

Looking at events in retrospect through the long

vista of the years we can see that from the outset

the occupancy of the Reservation was intended to

be permanent; that, however tortious in its origin,

it has been permanent in fact; and that the Govern-

ment of the United States through the action and

inaction of its executive and legislative departments

for half a century of time, has ratified the wrong,

adopting the de facto appropriation by relation as of

the date of its beginning.™

In recent years there has been a clear trend by the

Court toward finding the loss of an Indian tribe’s inter-

est in reservation land from the “surrounding circum-

stances” and legislative history.“ For example, in Rose-

52 299 U.S. 476 (1937).

53 Jd. at 495 (emphasis supplied). See also, United States v.

Northern Paiute Nation, 490 F.2d 954, 958 (Ct. Cl. 1974).

54 Mattz v. Arnett, 412 U.S. 481, 505 (1973). Accord, Solem v.

Bartlett, 104 S.Ct. 1161 (1984) ; Rosebud Sioux Tribe v. Kneip, 430

U.S. 584 (1977) ; DeCoteau v. District County Court, 420 U.S. 425

(1975).

19

bud Sioux Tribe v. Kneip,™ the Court considered the ef-

fect of three Acts of Congress that opened for settlement

various parts of a reservation which had originally been

established by treaty in 1894. The Court held that the

“mere fact” that a reservation had been opened to settle-

ment does not necessarily mean that the opened area lost

its reservation status; “the face of the Act,” the “sur-

rounding circumstances,” and the “legislative history,”

all can “clearly evidence congressional intent to diminish

the boundaries of the . . . Reservation.”™ In reaching

its conclusion, the Court considered the “jurisdictional

history” of the land at issue subsequent to the events

complained of; that is, the extent to which various state

and federal authorities treated the land as being outside

of the reservation:

[T]he single most salient fact is the unquestioned

actual assumption of state jurisdiction over the un-

allotted lands . . . since the passage of the 1904

Pe

In a case decided this term, Solem v. Bartlett,5* the

Court stated that what subsequently takes place on the

land is most useful in ascertaining the requisite intent

to disestablish a reservation:

On a more pragmatic level, we have recognized

that who actually moved onto opened reservation

lands is also relevant to deciding whether a surplus

land act diminished a reservation. Where non-Indian

settlers flooded into the opened portion of a reserva-

tion and the area has long since lost its Indian

55 430 U.S. 584 (1977).

5¢ Jd. at 587. See also, DeCoteau v. District County Court, 420

U.S. 425, 445 (1975).

57 430 U.S. at 603. Conversely, the Court also found that the fact

that neither Congress nor the executive sought to exercise authority

over the land was “entitled to weight as a part of the jurisdictional

history.” Jd. at 604.

58 104 S.Ct. 1161 (1984).

20

character, we have acknowledged that de facto, if

not de jure, diminishment may have occurred. [cita-

tions omitted]. In addition to the obvious practical

advantages of acquiescing to de facto diminishment,

we look to the subsequent demographic history of

opened lands as one additional clue as to what Con-

gress expected would happen once land on a par-

ticular reservation was opened to non-Indian set-

tlers.”

The Rosebud and Solem cases are particularly instruc-

tive here. The history of the Oneida Indian reservation

from the time of the 1795 treaty up to the final treaty

in 1846 demonstrates a pattern of turning over Indian

land to state control which has been consistent since the

time of the treaty. The population of the entire area has

clearly taken on a non-Indian character and the federal

government has not objected to the presence of its cur-

rent inhabitants. There is no evidence that the federal

government has ever formally challenged New York’s

authority over this land.

The fact that the United States knowingly allowed the

land in question to remain in the possession of the

successors-in-interest to the state of New York is itself

proof that the requirements of the Trade and Inter-

course Act have been met. In United States v. Creek

Nation,” a portion of land in which the Indian tribe

claimed an interest had been patented to various settlers.

The Court held that a compensable taking had occurred,

the United States having disposed of the land by the

issuance of patents to non-Indians. In so holding, the

Court found that the taking had occurred when the

United States, with knowledge of the facts, confirmed the

issuance of the patents by permitting them to stand un-

cancelled :

Plainly the United States would have been entitled

to a cancellation of the disposals had it instituted

59 Jd. at 1167 (emphasis added) (citations omitted).

60 295 U.S. 103 (1935).

21

suits for that purpose. But, although having full

knowledge of the facts, it made no effort in that di-

rection. On the contrary, it permitted the disposals

to stand—not improbably because of the unhappy

situation in which the other course would leave the

allottees and settlers. In this way the United States

in effect confirmed the disposals... .*

The above language speaks directly to the major fac-

tual elements of this case. The United States could have

sued or taken other action to render the 1795 transaction

with the state a nullity and thereby to maintain the

Indians’ right of occupancy.” It is quite clear here that

the United States was specifically afforded “full knowl-

edge of the facts” and took no legal steps to set aside

the transfer. The District Court found below that in

1795 Secretary of War Pickering ordered the local Indian

Superintendent, Israel Chapin, Jr., to speak to the

Oneidas to convince them not to enter into the disputed

sale. Chapin made contact with the Indians and informed

them of the government’s opposition to the sale. Accord-

ing to the District Court, “Chapin was [then] instructed

to leave matters as they stood.” The sale was concluded

shortly thereafter.“ It should also be emphasized that

the challenged sale was not an isolated example of an

obscure transfer of a small parcel of land affecting a

handful of current land owners.* The land in question

was transferred as one of a series of treaties that took

$1 295 U.S. at 110 (emphasis added).

*2 Federal Power Comm. v. Tuscarora Indian Nation, 362 U.S. 99,

119 (1960) (“The obvious purpose of [§ 177] is to . . . enable the

Government acting as parens patriae for the Indians, to vacate any

disposition of their lands made without its consent.”). See also,

United States v. Sandoval, 231 U.S. 28, 46-48 (1913).

*3 Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527,

534-35 (N.D.N.Y. 1977) (J.A. 54a-57a).

* Disestablishment has been found to occur in situations involv-

ing two parcels in a relatively small reservation. See Pechanga

Band v. Kacor Realty, Inc., 680 F.2d 71 (9th Cir. 1982), cert.

denied, 103 S.Ct. 817 (19838).

22

place over a period from 1795-1846." Both Congress and

the executive branch had knowledge of the Oneidas’ trea-

ties with New York from the time of their very occur-

ance. As in Creek Nation, the United States “permitted

the disposals to stand,” allowed the state and its succes-

sors in interest to remain in possession of the land and

thereby confirmed the entire 1795 transaction.”

The lower court’s simplistic reliance upon a misap-

plied phrase in Santa Fe should be reversed.* While the

65 The Indian Claims Commission has held that the United States

“had constructive knowledge of all of the 23 treaties, and probably

had actual knowledge of most of them.” Oneida Indian Nation v.

United States, 48 Ind. Cl. Comm. 378, 375 (1978). The Indian

Claims Commission also found that the federal government was

specifically informed of the very cession that is the subject of this

litigation. Jd. at 418.

66 The Second Circuit has itself acknowledged that the United

States made subsequent references to the 1795 treaty with the State

in its treaty with the Oneidas of June 1, 1798. Oneida Indian Na-

tion v. County of Oneida, 719 F.2d at 539 (J.A. 235a-36a). The

Second Circuit’s comment that “[t]here is no evidence that the

federal authorities were then aware of any claim of illegality of the

prior land sale” begs the question. /d. at 539-40 (J.A. 237a). The

only “claim of illegality” was the lack of consent. Otherwise the

transaction was perfectly legal. The federal recognition and im-

plied ratification of the immediately prior transaction was all that

was necessary to eliminate any problem with the 1795 transaction.

67 See also, Confederated Salish and Kootenai Tribes v. United

States, 401 F.2d 785, 787-88 (Ct. Cl. 1968), cert. denied, 393 U.S.

1055 (1969). Creek Nation and Salish make it clear that the plain-

tiffs are left, at most, only with a claim against the United States for

a wrongful taking. See generally, Arizona v. California, 108 S.Ct.

1382, 1396 n. 20 (1983). Such a right was, in fact, provided by the

Indian Claims Commission Act and the Oneidas themselves with-

drew from taking advantage of that means of recovery.

68 United States v. Santa Fe Pac. R.R. Co., 314 U.S. 339 (1941)

was not concerned with the ratification of a transaction in the

manner employed in this case. The issue in Santa Fe was whether

the policy concerning Indian rights in aboriginal land applied to

tribes within the Mexican cession. The Court held that a finding

that the policy would not apply requires “plain and unambiguous

action” by Congress. Jd. at 346.

23

Court shows concern for the protection of reasonable

tribal interests, it has also demonstrated the need “to see

the facts in true perspective [and to] . . . view them in

their totality and not in isolation.”* The Court con-

tinues to apply serious historical analysis in these cases

and has taken into account the “justifiable exceptions”

of current-day land owners in forming its conclusions.”

The defendants in this and in other Indian land claim

cases are surely justified in believing that their titles

could not be attacked on the basis of such ancient history

and in the face of Congress’ clear knowledge of the status

of their land.

Ill. THE ONEIDAS’ CLAIM PRESENTS SOLELY A

NON-JUSTICIABLE POLITICAL QUESTION

The Trade and Intercourse Act was an attempt by

Congress to assert a preeminent role over the conduct of

Indian affairs and to express a federal presence in trans-

actions between states and Indian tribes." Although Con-

gress recognized that the Indians had the right to re-

lease their right of occupancy to the original thirteen

States, it found within the Constitution the right to ex-

ercise political authority over such transactions. As noted

above, although the executive branch, which was Con-

gress’ delegate in these matters, had specific knowledge

of the 1795 Treaty and made some attempt to discourage

its conclusion, it never enforced the Trade and Inter-

course Act so as to set aside the conveyance.” This de-

cision not to implement the Trade and Intercourse Act

was inherently political. was not subject to the review of

* Shoshone Tribe v. United States, 299 U.S. 476, 495 (1937).

7 Rosebud Sioux Tribe v. Kneip, 480 U.S. 584, 604-05 (1977).

C7. Solem v. Bartlett, 104 S.Ct. 1161, 1171 (1984) (Fact that few

homesteaders moved onto the land is a factor in showing reserva-

tion not diminished).

™1 See Mohegan Tribe v. Connecticut, 638 F.2d 612, 622 (2d Cir.

1980), cert. denied, 452 U.S. 968 (1981).

72 Supra pp. 20 to 22.

24

any court and could not be legally challenged by the In-

dians. As an exercise of Congress’ plenary power over

Indian affairs it is not reviewable.

The Court continues to recognize Congress’ “para-

mount power over the property of the Indians.”™ This

power is derived “by virtue of [Congress’] superior

position over the tribes.” * Congress has the ability to

eliminate reservations or to reduce their boundaries with-

out tribal consent or without payment of compensation.”

The same power resides in Congress to establish reserva-

tions. Here the Indians seek to have the Court impose

its power to reestablish a reservation in an area that

has been bereft of such a presence for almost 175 years.

In so doing, they ask for the most extraordinary form of

relief that may have ever been requested of the Court.

They seek the ultimate reestablishment of Indian sover-

eignty over vast populated sections of the United States

and the ejectment of tens of thousands of truly innocent

people from their homes and businesses.” These land-

owners, who paid for their lands in good faith and with-

out knowledge of any latent Indian land claims, stand to

forfeit their land “without just compensation.”

7 United States v. Sioux Nation, 448 U.S. 871, 408 (1980),

quoting Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903).

7 Merrion v. Jicarilla Apache Tribe, 455 U.S. 180, 155 n. 21

(1982). See also, Tee-Hit-Ton Indians v. United States, 348 U.S.

272, 289-90 (1955).

™ United States v. Sioux Nation, 448 U.S. 371, 382, 383 n. 14

(1980) ; Rosebud Sioux Tribe v. Kneip, 480 U.S. 584, 594 (1977);

Lone Wolf v. Hitchcock, 187 U.S. 553, 566, 568 (1903). Cf. United

States v. Creek Nation, 295 U.S. 103 (1935) (compensation de-

pendent upon special congressional act).

76 See, United States v. Midwest Oil Co., 236 U.S. 459, 469-70

(1915).

7 The establishment of Indian tribal sovereignty over a particu-

lar tract of land has obvious political ramifications. See Rosebud

Sioux Tribe v. Kneip, 430 U.S. 584, 630-83 (1977) (Marshall, J.,

dissenting).

25

Judicial action of the type sought by the Tribes is in-

appropriate since it assumes rights that the Constitution

has reserved for Congress."* While in recent years the

Court has taken steps to define in clearer terms the ap-

plicability of the “political question” doctrine in Indian

litigation, it has not eliminated its applicability in cases

such as this.”

Thus, in United States v. Sioux Nation,” the Court

acknowledged that the “Sioux concede the constitution-

ality of Congress’ unilateral abrogation of the Fort

Laramie treaty.” What was viewed in Sioux Nation as

justiciable was the standard under which Congress was ob-

ligated to compensate the Indians for the taking once the

taking had, in fact, occurred.“ The actual fact of taking

the land was held to be within the sole jurisdiction of

Congress. Indeed, in Sioux Nation the Court made spe-

cific reference to a critical and still valid element of

Lone Wolf:

The Lone Wolf Court, therefore, was not required

to consider the contentions of the Indians that the

agreement ceding their lands had been obtained by

fraud, and had not been signed by the requisite

number of adult males. “[{A]1] these matters, in any

event, were solely within the domain of the legisla-

tive authority, and its action is conclusive upon the

courts.” @

78 Morton v. Mancari, 417 U.S. 535, 551-52 (1974). See generally,

Baker v. Carr, 369 U.S. 186, 215-17 (1962).

See generally, Gilligan v. Morgan, 413 U.S. 1, 11 (1978) (“be

cause [the political question] doctrine has been held inapplicable

to certain carefully delineated situations, it is no reason for federal

courts to assume its demise.”).

8° 448 U.S. 371, 418-14 n. 28 (1980).

51 448 U.S. at 411 n. 27.

82 448 U.S. at 411, quoting Lone Wolf v. Hitchcock, 187 U.S. 553,

568 (1903). See also, Solem v. Bartlett 104 S.Ct. 1161, 1166 n. 11

(1984) (“At one time, it was thought that Indian consent was

Thus the Court distinguished Lone Wolf in its consid-

eration of the political question doctrine on the fact that

in Sioux Nation, Congress provided a judicial remedy for

redress of a moral wrong, and it was only the post-

conveyance means of payment that was at issue:

Fourth, and following up on the political question

holding, the Lone Wolf opinion suggests that where

the exercise of congressional power results in injury

to Indian rights, “relief must be sought by an ap-

peal to that body for redress and not to the courts.”

Unlike Lone Wolf, this case is one in which the

Sioux have sought redress from Congress, and the

Legislative Branch has responded by referring the

matter to the courts for resolution . . . . Where Con-

gress waives the Government’s sovereign immunity,

and expressly directs the courts to resolve a taking

claim on the merits, there would appear to be far

less reason to apply Lone Wolf’s principles of defer-

ence. See United States v. Tillamooks, 329 U.S. 40,

46 (1946) (plurality opinion) .*

As for the New York Indians, Congress specifically pro-

vided a remedy for any violation of the Trade and Inter-

course Act by granting access to the Indian Claims Com-

needed to diminish a reservation, but in Lone Wolf v. Hitchcock,

187 U.S. 558 (1908), this Court decided that Congress could

diminish reservations unilaterally.” ).

88 Sioux Nation, 448 U.S. at 414. The Court also was clear that

the justiciability principles of Sioux Nation are applicable only to

takings of land where the Indians have “recognized title.” Jd. at

415 n. 29, citing Tee-Hit-Ton Indians v. United tSates, 348 U.S. 272

(1955). In Oneida and other such land claims there has been no

suggestion that the land at issue was recognized title land. Thus,

the clear import of the Court’s view of its Sioux Nation decision

is that Congress has an uncontroverted right to dispose of such

aboriginal land as it sees fit. See also, United States v. Santa Fe

Pac. R.R., 314 U.S. 339, 347 (1941) (“The manner, method and

time of such extinguishment [of aboriginal Indian title) raise

political, not justiciable, issues.”); Beecher v. Wetherby, 95 U.S.

517, 525 (1877) (“[{A)ction towards the Indians with respect to

their lands is a question of governmental policy .. . .”).

27

mission, a vehicle that these plaintiffs, until recently,

have effectively employed.”

That the Court should defer to the political branches is

also apparent from the very nature of this case and other

lawsuits that will be directly impacted by the Court’s

opinion. Judge Meskill, in his dissent below, character-

ized the result reached by the majority as:

a novel proposition of law, with consequences too

broad to be established on such shaky grounds. De-

mands for redress of violations of the Acts are better

directed to the other branches of the federal govern-

ment.*

In contrast with the judiciary, the political branches

are particularly well-suited to resolve the issues now be-

fore the Court. Just as those departments make discre-

tionary decisions about whether to condemn land for

public use or whether to provide disaster relief, they can

redress age-old claims of injuries, some technical and some

egregious, where alleged present-day violators are indi-

vidually innocent of any wrongdoing. They can weigh

the hardships that should and can be borne by diverse

segments of our society; they are able to compromise

these claims if appropriate. The political branches—if

they conclude that the Indian claimants should receive

redress—are able to allocate the costs of that relief to

society in general.” The Oneidas concede as much in

their brief opposing the petition for certiorari:

* See also, Delaware Tribal Business Comm. v. Weeks, 430 U.S.

73, 84 (1977). In that case the Court was careful to preserve areas

of Indian affairs that are clearly within Congress’ sole prerogative,

most specifically under its facts, the power to abrogate. Unlike

Delaware Tribal Bus. Comm., we are not concerned with evaluating

in either due process or equal protection terms the means chosen by

Congress to implement a decision affecting Indian land. The ques-

tion before the Court is Congress’ decision long ago not to return

the land at issue to Indian sovereignty.

85 719 F.2d at 549 (J.A. 258a).

It is important to emphasize that the Oneida’s claims have

been presented to, and decided by, the political branches. The

[I]t is clear that these claims can best be finally re-

solved through an equitable settlement implemented

by an act of Congress. In consultation with the par-

ties, the Congress can better weigh and make a fair

adjustment of competing equities than a court of

law.”

The Court should follow the Oneidas’ own suggestion

and remit this case to its proper venue.

CONCLUSION

The Indians in this and other land claim cases are

attempting to state causes of action for ancient wrongs.

They seek relief from thousands of innocent people who

purchased their property without any knowledge of the

failure to conform with a single federal statute. As

stated in a recent Indian land claim decision:

The Court believes that a great injustice was prob-

ably done to some of the [Indians] . . . , an injustice

all too typical of the general treatment of those

American natives upon whom the white man choose

to impose a conqueror’s terms. Justice would not be

served, however, by wresting those lands away, more

than a century later, from equally innocent land-

owners. To exact retribution on the current land-

owners for the sins of their great-grandfathers would

merely add to injustice, not right it.”

Oneidas presented their case at least twice to the President shortly

before filing this suit; the President and his “superintendent”

made their considered decision to limit government action to the

Indian Claims Commission. The Second Circuit’s conclusion is thus

inconsistent with the view of the executive branch. Ironically, the

Oneidas were awarded relief in 1978 by the Indian Claims Commis-

sion but then withdrew their claim after their success. See Oneida

Indian Nation v. United States, 43 Ind.Cl.Comm. 373 (1978).

87 Brief of Oneida Indian Tribes in Oposition to Petition for Writ

of Certiorari, p. 20.

88 Dennison v. Topeka Chambers Indus. Dev. Corp., 527 F. Supp.

611, 626 (D. Kan. 1981), aff'd, 724 F.2d 869 (10th Cir. 1984).

29

The judgment of the Court of Appeals, insofar as it

affirmed the District Court’s finding of liability against

the Counties, should be reversed.

JOHN C. CHRISTIE, JR.,

Counsel of Record

J. WILLIAM HAYTON

STEPHEN J. LANDES

LUCINDA O. MCCONATHY

BELL, Boyp & LLoyp

1775 Pennsylvania Ave., N.W.

Washington, D.C. 20006

202/466-6300

Dated: June 15, 1984

Respectfully submitted,

J. D. Topp, JR.

MICHAEL GIESE

LEATHERWOOD, WALKER,

Topp & MANN

217 E. Coffee Street

Greenville, SC 29602

803 / 242-6440

DAN M. Byrp, Jr.

MITCHELL K. Byrp

Byrp & Byrp

240 East Black Street

Rock Hill, SC 29730

803/324-5151

Attorneys for

C. H. Albright and other

South Carolina

Landowners