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

Office - Supreme Court, US. |

FILED

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

ALEXANDER L. STEVAS.

IN THE

CLERK

Supreme Court of the United States

OCTOBER TERM, 1983

THE COUNTY OF ONEIDA, NEW YORK, et al.,

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 a Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF THE AMERICAN LAND TITLE ASSOCIATION

AS AMICUS CURIAE

in Support of the Counties of Oneida and Madison,

Petitioners in No. 83-1065 and Respondents in No. 83-1240

WILLIAM T. FINLEY, JR.

Counsel of Record

DAvID F. B. SMITH

PIERSON SEMMES CROLIUS

AND FINLEY

Canal Square

1054 Thirty-first Street, N.W.

Washington, D.C. 20007

(202) 333-4000

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

BEST AVAILABLE COPY

TABLE OF CONTENTS

TABLE OF AUTHORITIES

INTEREST OF THE AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

I. The United States Ratified the 1795 Acquisition

of Oneida Land By the State of New York

Il. The Oneidas Have No Cause of Action Under

Federal Law Against Current Landholders

A. The Oneidas have no cause of action under

federal common law against current land-

holders

. The Oneidas have no implied private right

of action under the 1793 Act against current

landholders

. The Oneida Claim Is Barred Because It Was

Not Brought Until 175 Years After the Con-

veyance At Issue

CONCLUSION

ii

TABLE OF AUTHORITIES

Cases

Alabama Coushatta Tribe of Texas v. United States,

Cong. Ref. No. 3-83 (U.S. Claims Ct.) ................ 3

Arizona v. California, U.S. , 75 L. Ed. 2d

| eS ee ee

Bisek v. Bellanger, 5 F.2d 994 (D. Minn. 1925)...

Board of Regents v. Tomanio, 446 U.S. 487 (1980)... 22,

Boone v. Chiles, 35 U.S. (10 Pet.) 177 (1836) -.....

Brown v. Van Braam, 3 U.S. (3 Dall.) 344 (1798)...

Buffalo, Rochester & Pittsburgh Railway Co. v.

Lavery, 82 Sup. Ct. 396, 27 N.Y.S. 443 (App.

Div. 1894), aff’d on opinion below, 149 N.Y. 576

ess 3n

(3555) 0s wens eee 7

Canadian St. Regis Band of Mohawk Indians v.

New York, 97 F.R.D. 453 (N.D.N.Y. 1983) ........ 3

Catawba Indian Tribe of South Carolina v. South

Carolina, 718 F.2d 1291 (4th Cir. 1983), peti-

tion for rehearing en banc granted (Dec. 20,

BED cnccvcietenovsitincnsnstasidiiisitintsaaai 3

Cayuga Indian Nation of New York v. Cuomo,

565 F. Supp. 1297 (N.D.N.Y. 1983) -.................. 3

Chappaquiddick Tribe v. Watt, No. 81-3207-S (D.

> « > § § ) ee 3

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

| a ae 18, 21

Christiantown Tribe v. Watt, No. 81-3206-S (D.

SE — — EEE 8

Chrysler Corp. v. Brown, 441 U.S. 281 (1979) ....... 16

City of Milwaukee v. Illinois, 451 U.S. 304 (1981).. 18,14

Colorado Coal & Iron Co. v. United States, 123

CED, BOG CGD cecccctiscnsittiieatiniesititehmssiuriiininiaiimaiaiinaa 26

Cort v. Ash, 422 U.S. 66 (1975) _..........---222-22-...2.ee. 16

Duncan v. Andrus, 517 F. Supp. 1 (N.D. Cal.

DTS cccccecvuitaniccscshisisititiinainiaiiiiiaaiadiiiaasilieeiaas 27

Environmental Defense Fund, Inc. v. Alexander,

614 F.2d 474 (5th Cir.), cert. denied, 449 U.S.

GED CED cccncctintnsicccntttncentatinsiiaeeios

Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976)..

Ewert v. Bluejacket, 259 U.S. 129 (1922) .................

& SF

iii

TABLE OF AUTHORITIES—Continued

Page

Felix v. Patrick, 145 U.S. 317 (1892) —......0............ 26, 26

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).. 27

Goodman v. McDonnell Douglas Corp., 606 F.2d

800 (8th Cir. 1979), cert. denied, 446 U.S. 913

i eens 24

Herring Pond Tribe v. Watt, No. 81-8208-S (D.

Mass. filed Dec. 18, 1981) ...... , : 3

Holmberg v. Armbrecht, 327 U.S. 392 (1946) 24

Lemieux v. United States, 15 F.2d 518 (8th Cir.

ee 25

Middlesex County Sewerage Authority v. National

Sea Clammers Association, 453 U.S. 1 (1982) 15, 17

Minnesota Co. v. National Co., 70 U.S. (3 Wall.)

EE 1

Mohegan Tribe v. Connecticut, 638 F.2d 612 (24

Cir. 1980), cert. denied, 452 U.S. 968 (1981) ....3, 19, 21

Narragansett Tribe of Indians v. Southern Rhode

Island Land Development Corp., 418 F. Supp.

rR 22

Navajo Tribe of Indians v. New Merzico, Civ. No.

82-1148-JB (D. New Mex. Jan. 23, 1984), appeal

ES LES EEE 6

Nevada v. United States, U. S. —., 77 L. Ed.

EE ST 1

Northwest Airlines, Inc. v. Transport Workers

Union, 451 U.S. 77 (1981) : —_— FF YF, ,

Oglala Sioux Tribe of the Pine Ridge Indian Reser-

vation v. United States, 650 F.2d 140 (8th Cir.

1981), cert. denied, 455 U.S. 907 (1982) ... 6, 29

Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978) aera ————- Ft

Oneida Indian Nation v. Williams, Civ. No. 14-CV-

167 (N.D.N.Y. filed 1974) . —_ 2

Oneida indian Nation v. County of Oneida, Civ. No.

74-CV-187 (N.D.N.Y. filed May 3, 1974) ............ 2

Oneida Indian Nation of New York v. New York,

691 F.2d 1070 (2d Cir. 1982) .. 2

Oneida Nation of New York v. United States, 43

Ind. Cl. Comm. 878 (1978) ..................................... 5, 6, 11

iv

TABLE OF AUTHORITIES—Continued

Order of Railroad Telegraphers v. Railway Ex-

press Agency, Inc., 321 U.S. 342 (1944) ~..........

Pechanga Band of Mission Indians v. Kacor Realty,

Ine., No. CU-78-4499-MML (C.D. Cal. Aug. 22,

1980), aff’d on other grounds, 680 F.2d 71 (9th

Cir. 1982), cert. denied, 103 S. Ct. 817 (1983) ....

Robertson v. Wegmann, 436 U.S. 584 (1978)........

Schaghticoke Tribe v. Kent School Corp., Inc., 423

F. Supp. 780 (D. Conn. 1976) ...............................

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

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) ..............................

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

een

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

STEED i ciccecesiesesicieninneliinclesiietestiibianaeiiniiesietatemritaaiiiaaiaielliade

Sim’s Lessee v. Irvine, 3 U.S. (3 Dall.) 425 (1799)..

Six Nations Confederacy v. Andrus, 610 F.2d 996

(D.C. Cir. 1979), cert. denied, 447 U.S. 922

TTI cccesiciussnsseersnnnssiiiatianstnllinaiamesiiitiaiinsactiaiadtmanitianiitimnanatndn

Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842) ............

Temoak Band of Western Shoshone Indians v.

United States, 593 F.2d 994 (Ct. Cl.), cert. de-

MY ee

Texas Industries, Inc. v. Radcliff Materials, Inc.,

i ES ee

Thlocco v. Magnolia Petroleum Co., 141 F.2d 934

(5th Cir.), cert. denied, 323 U.S. 785 (1944)...

Touche, Ross & Co. v. Redington, 442 U.S. 560

ES ee See awe

Transamerica Mortgage Advisors, Inc. v. Lewis,

' § | FF >

Troy Tribe v. Watt, No. 81-3209-S (D. Mass. filed

SE SS ee ee

United Parcel Service, Inc. v. Mitchell, 451 US. 56

SS ee

United States v. California & Oregon Land Co.,

148 U.S. 31 (1893) -............. clinlnhoneitttalittlasitusinpsinaaiiiiiias

Page

27

23

22

25

~

13

17

15

D}

:

v

TABLE OF AUTHORITIES—Continued

Page

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

ee ee en +)

United States v. Dann, 706 F.2d 919 (9th Cir.

1983), cert. granted, No. 83-1476 (May 29,

AEN ES Eee Se a 29

United States v. Debell, 227 F. 760 (9th Cir. 1915) 27

United States v. Demmon, 72 F. Supp. 336 (D.

Ee Se nee es ae eee A ee a 26

United States v. Eaton Shale Co., 433 F. Supp.

1256 (D. Colo. 1977) .......... Siletiie 26

United States v. Jacobs, 195 F. 707 (8th Cir.

1912) SN oe 27

United States v. Koleno, 226 F. 180 (8th Cir.

1915) a ae we 26

United States v. Kubick, 444 US 111 (1979) ........ 22

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

859 (2d Cir. 1944) . consiglaenuligntinaieidintadenitias 7,8

United States v. Northern Paiute Nation, 490 F. od

964 (Ct. Cl. 1974) ................................ 9

United States v. Oneida Indian Nation of New

York, 477 F.2d 939 (Ct. Cl. 1973) ...... 6

United States v. Title Ins. & Trust Co.., 265 U. S.

472 (1924) NR ne a a ee a 1

Universities Research Association v. Coutu, 450

U.S. 754 (1981) 15

Wampanoag Tribal Council of Gay Head, Ine. v.

Town of Gay Head, No. 74-5826-MCN (D. Mass.

filed 1974) 3

Wheaton v. Peters, 33 U.S. (8 Pet. ) 591 (1884) - 12

Wright-Blodgett Co. v. United States, 236 U.S. 397

(1915) ; = 7 aa 26

Yankton Siour Tribe v. United States, 272 U.S.

851 (1926) sa ) ate 26

Statutes

Act of May 19, 1796, ch. 30, 1 Stat. 469 = 17

Act of March 1, 1793, ch. 19, 1 Stat. 329 14, 16, 17, 19

Act of July 22, 1790, ch. 33, 1 Stat. 137 16

vi

TABLE OF AUTHORITIES—Continued

Other Authorities Page

1 American State Papers: Indian Affairs (1834).... 16

F. Cohen, Handbook of Federal Indian Law (AMS

Press reprint of 1942 edition) ............................... 20

Crane, Congressional Intent or Good Intentions:

The Inference of Private Rights of Action Under

the Indian Trade and Intercourse Act, 63 B.U.L.

Rev. 853 (1983) . — = FS

48 Fed. Reg. 13698 (Mar. 31, 1983) . oo | 3

48 Fed. Reg. 51204 (Nov. 7, 1983) oleae 3

Felix S. Cohen’s Handbook of Federal Indian Law

(1982 ed.) .. 21

Letter from Oscar L Chapman, Under Secretary

of the Interior, to Senator Hugh Butler, Chair-

man, Committee on Interior and Insular Affairs

(March 1, 1948), reprinted in S. Rep. No. 1137,

80th Cong., 2d Sess. 4-5 (1948) ......................... 11

Letter from Ray L. Wilbur, Secretary of the In-

terior, to Senator Lynn J. Frazier, Chairman,

Committee on Indian Affairs (October 12, 1929),

reprinted in Hearings on H.R. 9720 Before the

House Comm. on Indian Affairs, 71st Cong. 2d

Sess. 189 (1930) _..... SS 11

i Messages and Papers of the President (J. Rich-

ardson ed. 1896) _.......... 16

F. Prucha, American Indian Policy i in the Forma-

CD 17, 19, 20

Report by John R. T. Reeves to the Commissioner

of Indian Affairs, Dec. 26, 1914, reprinted in

H.R. Doc. No. 1590, 63d Cong., 3d Sess. 14

eae 11

D. Smith, The American Diplomatic Experience

(1972) ........ seaitiinaniadity scicaettanitaaeiacaraasieaniaeiinaicieiaiaaiate amass 20, 21

INTEREST OF THE AMICUS CURIAE

The American Land Title Association is the national

trade association of the land title industry. The Associa-

tion has approximately 2,000 members, including land

title insurers, title insurance agents, abstracters, and as-

sociate members. The principal function of the land title

industry is to facilitate the safe, certain and efficient

transfer of title to real estate in both residential and

commercial transactions by ascertaining and insuring

the rights of purchasers, mortgage lenders and others in

the real estate that is the subject of those transactions.

The interest of the American Land Title Association

in this case arises because of the interest of the Associa-

tion and its members in the certainty and predictability

of the laws affecting titles to and rights in real estate.

This Court has long recognized the importance of sta-

bility in real estate titles. See, e.g., Nevada v. United

States, -——- US. ——, 77 L. Ed. 2d 509, 524 n.10

(1983) (quoting Minnesota Co. v. National Co., 70 U.S.

(3 Wall.) 332, 334 (1865)); Arizona v. California,

US. , 75 L. Ed. 2d 318, 334 (1983); United States

v. Title Ins. & Trust Co., 265 U.S. 472 (1924).

This case threatens the stability of titles to real es-

tate like iew cases that have come before. The threat

extends not only to the 100,000 acres of land in New

York acquired from the Oneidas in 1795 in the transac-

tion that is the subject of this litigation, but also to

additional land in New York and in other states that

was acquired from Indian tribes in similar situations.

The statement of the case by petitioners the County of

Oneida and the County of Madison (hereinafter “Coun-

ties”) describes the nature of the claim asserted by re-

spondents Oneida Indian Nation of New York, Oneida

Indian Nation of Wisconsin, and Oneida of the Thames

Band Council (hereinafter “Oneidas”). The gravamen

of the claim asserted by the Oneidas is that the purchase

in 1795 of 100,000 acres of land from the Oneida Na-

tion by the State of New York is void because there was

no federal participation in the transaction as allegedly

2

required by section 8 of the Trade and Intercourse Act

of 1793."

Because of this alleged lack of federal participation,

the Oneidas maintain, and the courts below held, that

all subsequent transfers of the 100,000 acres acquired by

New York in 1795 are also void. Defenses based on stat-

utes of limitations, laches, adverse possession, and the

good faith of innocent purchasers were ruled inapplicable

as a matter of law. 434 F. Supp. at 541-44, Jt. App.

at 7la-76a. In the view of the courts below, the Oneidas

have a present right to possess the 100,000 acres of land

that their ancestors last possessed in 1795, despite the

intervening two centuries of good faith occupation and

development of the 100,000 acre tract by thousands of

landholders.

As indicated above, the threat to the stability of real

estate titles presented by the ruling in this case extends

beyond the 100,000 acres acquired from the Oneidas in

1795. New York acquired an additional 150,000 acres

of land from the Oneidas in roughly 25 transactions be-

tween 1800 and 1848. The Oneidas allege that these

transactions are likewise void because of a lack of fed-

eral participation, and assert a present right to possess

the land involved.2 New York acquired land from other

' Act of March 1, 1793, ch. 19, § 8, 1 Stat. 329.

2 See Oneida Indian Nation v. County of Oneida, Civ. No. 74-CV-

187 (N.D.N.Y. filed May 3, 1974) (action for damages challenging

approximately 25 transactions with New York); Oneida Indian

Nation v. Williams, Civ. No. 74-CV-167 (N.D.N.Y. filed 1974)

(action for ejectment against 23 landowners).

The Oneidas have also filed suit seeking to be restored to posses-

sion of approximately 5,750,000 acres of land acquired by New

York in two transactions in 1785 and 1788, alleging that those two

acquisitions violated the Articles of Confederation because they

were made without the participation of the confederal government

and therefore were void. See Oneida Indian Nation of New York

v. New York, 691 F.2d 1070 (2d Cir. 1982). The suit challenging

the 1785 and 1788 acquisitions poses many of the same issues that

are raised by this case.

3

Indian tribes during the period from 1785 to approxi-

mately 1840, and those tribes similarly assert that the

transactions are void and therefore that the tribes have

a present right to possess the land.’

Nor is the impact of this case limited to the State of

New York. Claims similar to those asserted by the

Oneidas are pending or threatened in Connecticut, Lou-

isiana, Massachusetts, South Carolina, Texas, and else-

where.*

One factor that remains constant with respect to all

of the claims is that the current landholders are inno-

cent, good faith occupants of the land now being claimed

by Indian tribes. Whatever wrongs may have been per-

petrated on Indian groups generations ago were done

without the knowledge or participation of the thousands

of private landowners who possess the land today. Ir-

respective of the arguments, legal or equitable, that In-

dian groups such as the Oneidas can marshal to show

that New York should not have acquired their land in

3 See, e.g., Cayuga Indian Nation of New York v. Cuomo, 565

F. Supp. 1297 (N.D.N.Y. 1988); Canadian St. Regis Band of Mo-

hawk Indians v. New York, 97 F.R.D. 453 (N.D.N.Y. 1988).

* See Catawba Indian Tribe of South C+rolina v. South Carolina,

718 F.2d 1291 (4th Cir. 1983), petition for rehearing en banc

granted (Dec. 20, 1983); Mohegan Tribe v. Connecticut, 688 F.2d

612 (2d Cir. 1980), cert. denied, 452 U.S. 968 (1981) ; Schaghticoke

Tribe v. Kent School Corp., Inc., 423 F. Supp. 780 (D. Conn. 1976) ;

Wampanoag Tribal Council of Gay Head, Inc. v. Town of Gay

Head, No. 74-5826-MCN (D. Mass. filed 1974); Christiantown

Tribe v. Watt, No. 81-8206-S (D. Mass. filed Dec. 18, 1981);

Chappaquiddick Tribe v. Watt, No. 81-3207-S (D. Mass. filed Dec.

18, 1981); Herring Pond Tribe v. Watt, No. 81-3208-S (D. Mass.

filed Dec. 18, 1981); Troy Tribe v. Watt, No. 81-3209-S (D. Mass.

filed Dec. 18, 1981); see also Statute of Limitations Claims List,

48 Fed. Reg. 51204, 51252 (Nov. 7, 1983); 48 Fed. Reg. 13698,

18920 (Mar. 31, 1983) (Department of the Interior listing of

potential Indian land claims in the “Eastern Area’); cf. Alabama

Coushatta Tribe of Texas v. United States, Cong. Ref. No. 3-83

(U.S. Claims Ct.) (claiming tribe possesses unextinguished abo-

riginal title to 17 counties in Texas).

4

1795, it would be an unprecedented miscarriage of justice

for this Court to render a decision that would mean that

thousands of current landholders have no right to possess

their homes, farms and businesses because the federal

government did not participate sufficiently in the acquisi-

tion of Indian land almost two centuries ago.

SUMMARY OF ARGUMENT

The Counties advance four arguments why the Oneida

claim should not prevail: (1) the United States subse-

quently ratified and therefore validated the 1795 acquisi-

tion by New York, (2) the Oneidas do not have a cause

of action against the counties under federal law, (3)

the Oneida claim is barred because it was not brought

until 175 years after the conveyance at issue, and (4)

the Oneida claim presents nonjusticiable political ques-

tions. The American Land Title Association endorses

these arguments and joins in them. The Association ad-

dresses the first three of these arguments in its brief.

The arguments advanced by the Counties all share

a common theme. It was, and is, the responsibility of the

executive and legislative branches of the federai govern-

ment to address the fundamental issues raised by the

Oneida claim. It was the responsibility of Congress and

the executive branch in 1795 to determine whether New

York’s acquisition of land from the Oneidas contravened

federal policy and, if it did, to take whatever steps were

advisable to make New York comply with that federal

policy. It is the responsibility of Congress and the ex-

ecutive branch today to determine what remedial action,

if any, should be taken at this late date with respect to

what occurred 190 years ago. Indian tribes or private

parties should not be allowed to usurp this federal gov-

ernmental responsibility through lawsuits against cur-

rent landholders.

Sr errr ee 4 eT ey wwe we

5

ARGUMENT

I. The United States Ratified the 1795 Acquisition of

Oneida Land By the State of New York.

The courts below ruled not only that New York ac-

quired the Oneidas’ land without obtaining the approval

of the federal government in 1795, but also that the

federal government has never subsequently approved the

acquisition. See 719 F.2d at 539, Jt. App. at 235a-37a;

434 F. Supp. at 538-40, Jt. App. at 64a-67a. The courts

below appeared to view the 1795 acquisition as if it in-

volved only a small parcel of land that could easily and

understandably be overlooked by the federal government

for 190 years.° The 1795 acquisition, of course, did not

involve a parcel that could so easily be overlooked. It

involved 100,000 acres (roughly 150 square miles) that

comprised 40 percent of the Oneidas’ then-existing res-

5In rejecting the Counties’ argument that the United States

ratified the 1795 acquisition by its approval of acquisitions by

New York in 1798 and 1802 that referred to the 1795 acquisition,

the Court of Appeals stated there was no evidence that in 1798

and 1802 “the federal authorities were then aware of any claim

of illegality of the prior land sale.” 719 F.2d at 539-40, Jt. App.

at 237a. Earlier in its opinion, however, the Court noted that in

1795 “the federal authorities repeatedly urged New York State

Governor Clinton and his successor Governor John Jay to seek and

secure the appointment of federal commissioners before the State

negotiated any purchase of Indian lands,” 719 F.2d at 529, Jt. App.

at 212a, and indeed the Indian Claims Commission decision up-

holding the Oneidas’ breach of fiduciary duty claim against the

United States with respect to the 1795 acquisition determined that

the federal government knew of that acquisition at the time it was

made and described a barrage of correspondence involving the

President, the Attorney General, the Secretary of War, the federal

Indian agent for New York, and Governor Jay attempting to stop

New York from proceeding with the 1795 acquisition unless a

federal commissioner were present. See Oneida Nation of New

York v. United States, 43 Ind. Cl. Comm. 373, 379-84 (1978).

Clearly, in addition to their other failings, the federal authorities

were cursed with short memories, since, according to the Court of

Appeals, by 1798 they had forgotten the transaction they had

supposedly so vigorously opposed in 1795.

6

ervation. Moreover, the 1795 transaction was but one

of a series of transactions by which New York acquired

250,000 acres of land from the Oneidas after 1790.

It is preposterous to suggest that the federal govern-

ment somehow overlooked for 190 years a transfer in-

volving 150 square miles in New York. It is even more

preposterous to suggest that the United States withheld

its approval of that transfer for 190 years while per-

mitting the State of New York and countless thousands

of innocent individuals to act on a mistaken belief con-

cerning the ownership of the land. Neither of these sug-

gestions is tenable. The truth of the matter is that the

United States ratified New York’s 1795 acquisition of

Oneida land. This is the only satisfactory explanation

of the United States’ course of conduct since 1795.°

¢It may well be that the ratification of the 1795 acquisition by

the United States constituted a breach of its fiduciary duty to the

Oneidas. The Oneidas brought an action for breach of fiduciary

duty against the United States before the Indian Claims Commis-

sion with respect to the 1795 acquisition as well as the other

acquisitions by the State of New York, and prevailed. See United

States v. Oneida Indian Nation of New York, 477 F.2d 939 (Ct.

Cl. 1973), on remand, 43 Ind. Cl. Comm. 373 (1978) (United

States breached its fiduciary duty te Oneidas by failing to protect

them in land sales to New York). Before the Indian Claims Com-

mission could determine the recovery to which the Oneidas were

entitled because of this breach of fiduciary duty, the Oneidas elected

to dismiss their claim. The One'das’ decision to renounce their

claim, of course, does not negate the fact that Congress did provide

them with a remedy. Indeed, courts have held that Congress in-

tended the Indian Claims Commission to be the exclusive remedy

for ancient Indian land claims. Oglala Sioux Tribe of the Pine

Ridge Indian Reservation v. United States, 650 F.2d 140 (8th Cir.

1981), cert. denied, 455 U.S. 907 (1982); Navajo Tribe of Indians

v. New Mexico, Civ. No. 82-1148-JB (D. New Mex. Jan. 23, 1984),

appeal pending; see also Six Nations Confederacy v. Andrus, 610

F.2d 996, 998 (D.C. Cir. 1979), cert. denied, 447 U.S. 922 (1980)

(“Because Congress enacted a special and exclusive system for

determination of claims under the Indian Claims Commission Act,

appellant could not choose for itself another avenue of relief. Cor-

gress had selected the route that had to be followed.”); Temoak

7

It is clear that the United States can subsequently

ratify transfers governed by the land transfer provisions

of the trade and intercourse acts. Indeed, courts have

held that the United States has done so with respect to

a number of Indian land transfers in New York. See

United States v. National Gypsum Co., 141 F.2d 859

(2d Cir. 1944) ; Seneca Nation v. United States, 178 Ct.

Cl. 912 (1965) ; 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); Buffalo, Rochester &

Pittsburgh Railway Co. v. Lavery, 82 Sup. Ct. 396, 27

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

149 N.Y. 576 (1896). For example, in Seneca Nation

v. United States, 173 Ct. Cl. 912 (1965), the Senecas

sued the United States under the Indian Claims Com-

mission Act alleging that the United States failed to

bring an action against the State of New York to re-

cover land that was taken by New York without federal

approval and therefore in violation of the Trade and

Intercourse Act. The Court of Claims determined that

the Senecas were not entitled to recover from the United

States because the United States had approved the 1858

transfer:

[I]f federal consent was needed under the Trade

and Intercourse Act, such approval has been given.

All agree that appellant would have no complaint if

assent had been given at the time of the appropria-

tions. But approval can also come afterwards, and

that is what happened here. In 1927, Congress pro-

vided that New York’s game and fish laws should

thereafter apply to the Senecas’ Oil Spring Reser-

vation (among others), except “that this Act shall

be inapplicable to lands formerly in the Oil Spring

Band of Western Shoshone Indians v. United States, 593 F.2d 994.

997-99 (Ct. Cl.), cert. denied, 444 U.S. 973 (1979) (“There can be

no doubt that Congress passed the Indian Claims Commission Act,

25 U.S.C. $70 and ff, with the object of drawing in all claims of

ancient wrongs, respecting Indians, and to have them adjudicated

once and for all.’”’)

8

Reservation and heretofore acquired by the State of

New York by condemnation proceedings.” This ex-

plicit recognition and implicit ratification of New

York’s ownership of the tract must be taken as Con-

gress’s approval of the original appropriation, as

well as of the state’s continued claim of right.

173 Ct. Cl. at 915 (emphasis added).

Similarly, in United States v. National Gypsum Co.,

141 F.2d 859 (2d Cir. 1944), the United States Court

of Appeals for the Second Circuit considered an action

brought by the United States on behalf of an Indian

tribe to void two leases on the ground that the leases

were made without federal approval in violation of the

land transfer provision of the Trade and Intercourse Act.

The Second Circuit ruled that the federal government

had implicitly approved the leases. As Judge Augustus

Hand explained:

For many years it has been the understanding of

the Department of the Interior, the Commissioner

of Indian Affairs and the State authorities that the

Tonawanda Reservation stood in a unique position

and that its transfer to the Comptroller in trust em-

powered the State to provide for leases of reserva-

tion lands and that leases of such lands have been

made under a comprehensive plan set up under State

authority and warranted by the terms of the origi-

nal treaty with the Tonawandas. It is not doubted

that Congress could make other provisions for the

disposition of the lands of the Tonawandas and can

make them for any further leases, but until it does

so we think that a status so long maintained with

the approval of the United States government should

be recognized and is not in contravention of 25

U.S.C.A. § 177, R.S. § 2116.

Id. at 863 (emphasis added).

In other contexts involving Indian tribes, courts have

held that subsequent conduct by the United States can

validate an action illegal at the time it was committed.

See, e.g., Shoshone Tribe v. United States, 299 U.S. 476

9

(1937) ; United States v. Creek Nation, 295 U.S. 108

(1935) ; United States v. Northern Paiute Nation, 490

F.2d 954 (Ct. Cl. 1974). For example, in Shoshone

Tribe the United States settled the Northern Arapaho

Tribe on the Shoshone reservation despite a treaty pro-

viding that the Shoshone reservation would be “set apart

for the absolute and undisputed use and occupation of

the Shoshone Indians.” 299 U.S. at 485-86. Nothwith-

standing repeated protests by the Shoshones, the United

States continued to maintain the Arapahoes on the Sho-

shone reservation, and in time regarded the Arapahoes

as co-owners of the Shoshone reservation. Jd. at 488-

90. Ultimately the Shoshones sued for compensation. In

fixing the date when the United States acquired the por-

tion of the Shoshone reservation given to the Arapahoes,

this Court determined that, because the United States

had ratified the wrong, the date of taking occurred at the

time of the original illegal entry.

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 has ratified the wrong, adopting

the de facto appropriation by relation as of the date

of its beginning.

299 U.S. at 495 (emphasis added).

The principles developed in these cases make it clear

that the federal government can subsequently ratify and

approve a transfer of Indian land to which the land

transfer provision of the Trade and Intercourse Act ap-

plies, and in fact the United States has ratified and ap-

proved the 1795 acquisition of the Oneida lands by the

State of New York. The 1798 and 1802 acquisitions by

New York, which were explicitly approved by the United

States, referred to the 1795 acquisition as an accom-

-

10

plished fact. The agreement concerning the 1798 ac-

quisition of Oneida land by New York provided in part:

The said [Oneida] Indians do cede release and quit

claim to the People of the State of New York, for-

ever, All the Lands within their Reservation to the

Westward and Southwestward of a Line from the

Northeastern corner of the Lot No. 54, in the last

purchase from them running northerly to a button

wood tree ....

Jt. App. at 36a (emphasis added). The phrase “last

purchase from them” refers to the 1795 acquisition, and

“lot No. 54” was clearly included within the 1795 ac-

quisition. A United States commissioner was present

at the signing of the 1798 agreement and Congress rati-

fied the 1798 agreement on February 13, 1799.

On June 4, 1802, New York and the Oneida Nation

entered into another agreement for the acquisition of

Oneida lands. The 1802 agreement provided in part:

All that certain Tract of Land, beginning at the

Southwest corner of the Land lying along the Genesee

read . . . thence southerly in the direction of the con-

tinuation of the east bounds of said last mentioned

tract, to other lands heretofore ceded by the said

Oneida Nation of Indians, to the people of the State

of New York then along the same westerly, to a part

of said last mentioned Land, called the Two-mile

strip and thence along the same, northerly to the

place of Beginning.

Jt. App. at 38a-39a (emphasis added). Again, the phrase

“other lands heretofore ceded” refers to the land ac-

quired from the Oneidas by New York in 1795. A United

States commissioner was also present at the signing of

the 1802 agreement and Congress ratified the agreement

on December 31, 1802.

Apart from the approval of the 1795 acquisition given

through the 1798 and 1802 agr2ements, the “action and

inaction of [the] legislative and executive departments”

11

for 190 years demonstrates that the United States has

approved the 1795 acquisition.” It is simply too late in

the day to pretend after 190 years of federal action to

the contrary that the United States has withheld its ap-

proval of the 1795 acquisition and intended the Oneidas

to retain the right to possess this land.

'The United States has taken numerous actions that are incon-

sistent with any supposed recognition on its part of ownership

rights by the Oneidas in the 100,000 acre tract. For example,

Interstate 90, a federally assisted highway, traverses the tract.

Presumably the United States has filed and enforced federal tax

liens against real property owned by persons other than the Oneidas

located within the tract, and the Federal Housing Administration

and the Veterans Administration have made loans secured by

property located within the tract. Such conduct is inconsistent

with any federal recognition of the rights asserted by the Oneidas.

It is also beyond dispute that the feders] government was well

aware of the circumstances of New York’s acquisition of the

Oneidas’ lands, both at the time the acquisition occurred, see

Oneida Nation of New York v. United States, 48 Ind. Cl. Comm.

373, 379-84 (1978). and subsequently. See Letter from Oscar L.

Chapman, Under Secretary of the Interior, to Senator Hugh Butler,

Chairman, Committee on Interior and Insular Affairs (March 1.

1948), reprinted in S. Rep. No. 1187, 80th Cong., 2d Sess. 4-5

(1948); Letter from Ray L. Wilbur, Secretary of the Interior, to

Senator Lynn J. Frazier, Chairman, Committee on Indian Affairs

(October 12, 1929), reprinted in 'learings on H.R. 9720 Before the

House Comm. on Indian Affairs, 71st Cong., 2d Sess. 189 (1930)

(“In some instances such transactions [between New York and

Indian tribes] were had with the sanction of the Federal Govern-

ment and in others without such sanction other than such as might

be implied. That is, as to those transactions between the Indians

and the State not expressly sanctioned, no protest or opposition

thereto has ever been raised, at least in so far as the legislative and

executive branches of the Federal Government are concerned.”’) ;

Report by John R. T. Reeves to the Commissioner of Indian Affairs,

Dec. 26, 1914, reprinted in H.R. Doc. No. 1590, 68d Cong., 3d Sess.

14 (1915). Thus it simply cannot be maintained, as the Court of

Appeals below seemed to suggest, that the United States acted in

derogation of the Oneidas’ purported rights in the 100,000 acre

tract because the United States was unaware of any claim of

illegality with respect to the 1795 acquisition.

12

Il. The Oneidas Have No Cause of Action Under Federal

Law Against Current Landholders.

Neither federal common law nor federal statutory law

provides the Oneidas with a cause of action against cur-

rent landholders. Because there was no federal common

law prior to the Court’s decision in Swift v. Tyson* in

1842, no federal common law cause of action arose in

favor of the Oneidas at the time of New York’s allegedly

improper 1795 acquisition. In any event, the Trade and

Intercourse Act of 1793 would have preempted any fed-

eral common law cause of action if one had otherwise

been available. No cause of action arose in favor of the

Oneidas under federal statutory law, because Congress

did not intend to permit an implied private right cf

action under the 1793 Trade and Intercourse Act.

A. The Oneidas have no cause of action under federal

common law against current landholders.

As Judge Meskill, dissenting in the Court of Appeals be-

low, noted, the federal common law cause of action up-

held by the majority below “is truly a novel legal prin-

ciple. There never has been, and this Court should not

now create, a federal common law action. No case has

ever held that an Indian tribe may maintain a direct

action for damages based upon federal common law.”

719 F.2d at 545, Jt. App. at 250a (Meskill, J., dissent-

ing). It is hardly surprising that no court recognized

such a cause of action before, since in the early years

of our federal system, when the 1795 acquisition oc-

curred, there simply was no federal common law. This

Court stated in Wheaton v. Peters, 33 U.S. (8 Pet.) 591

(1834) :

It is clear there can be no common law of the United

States. The federal government is composed of

twenty-four sovereign and independent states, each

of which may have its local usages, customs, and

common law. There is no principle which pervades

* 41 U.S. (16 Pet.) 1 (1842).

13

the Union and has the authority of law that is not

embodied in the Constitution or laws of the Union.

The common law could be made a part of our federal

system only by legislative adoption. When, there-

fore, a common law right is asserted, we must look

to the State in which the controversy originated.

Id. at 658; accord Sim’s Lessee v. Irvine, 3 US. (3

Dall.) 425, 457 (1799); Brown v. Van Braam, 3 U.S. (3

Dall.) 344, 356 (1797). The Oneidas, therefore, had no

federal common law cause of action when the 1795 trans-

action occurred. While federal courts began to develop

federal common law after this Court’s decision in Swift

v. Tyson in 1842, “it remains true that federal courts,

unlike their state law counterparts, are courts of limited

jurisdiction that have not been vested with open-ended

lawmaking powers.” Northwest Airlines, Inc. v. Trans-

port Workers Union, 451 U.S. 77, 95 (1981); accord

City of Milwaukee v. Illinois, 451 U.S. 304, 312 (1981).

Because the instances in which federal courts may create

federal common law are “few and restricted,” Texas In-

dustries, Inc. v. Radcliff Materials, Inc., 451 U.S. 630,

640 (1981); City of Milwaukee v. Illinois, 451 U.S. 304,

313 (1981), this Court should not permit this limited

authority to be used to create today a federal common

law cause of action to challenge a transaction that oc-

curred 190 years ago.

Assuming arguendo that a federal common law cause

of action would otherwise have existed, the 1793 Trade

and Intercourse Act preempted that cause of action. City

of Milwakuee v. Illinois, 451 U.S. 304 (1981), provides

the standard for analyzing whether the Oneida cause of

action is preempted. The Court’s decision in City of

Milwaukee established that the relevant test for preemp-

tion was “whether the legislative scheme ‘spoke directly

to a question’ . . . not whether Congress had affirmatively

proscribed the use of federal common law.” Id. at 315.

The Court noted that “when the question is whether stat-

utory or federal common law governs . . . ‘we start with

the assumption’ that it is for Congress, not federal

14

courts, to articulate the apropriate standards to be ap-

plied as a matter of federal law.” Jd. at 316-17.

Applying the City of Milwaukee preemption test shows

that the 1793 Trade and Intercourse Act preempted any

federal common law remedy that might otherwise have

existed.” The 1793 Act clearly “spoke directly to the

question” of federal supervision of land transfers by

Indian tribes by comprehensively regulating the circum-

stances under which land could be acquired from Indien

tribes and by imposing criminal penalties for violations

of the act’s prohibitions. Negotiation for the purchase of

an interest in Indian land without the approval of the

United States was made a misdemeanor punishable by

imprisonment not exceeding 12 months and a fine not

exceeding $1,000. Act of March 1, 1793, ch. 19, §8, 1

Stat. 329. The same criminal penalty was imposed on a

person making an unauthorized settlement on Indian

land. Jd. §5. The President was authorized to take

such measures as he might deem necessary to remove

unlawful settlers. Jd. Informant’s suits were authorized

to assist in the enforcement of the criminal fines. If an

informant initiated the prosecution, he would receive one

half of the total fine collected, and the other halt would

go to the United States. If the United States instituted

the prosecution, it received all of the fines collected.

Id. § 12.

These provisions demonstrate that the 1793 Act was,

particularly within the context of its time, a comprehen-

sive statutory scheme for the regulation of Indian affairs

and specifically for the acquisition of Indian lands. This

comprehensive statutory scheme preempted any federal

common law action that might otherwise have existed.

* See Crane, Congressional Intent or Good Intentions: The In-

jerence of Private Rights of Action Under the Indian Trade and

Intercourse Act, 63 B.U.L. Rev. 853, 906-10 (1983).

15

B. The Oneidas have no implied private right of action

under the 1793 Act against current landholders.

The Oneidas also lack a federal statutory cause of ac-

tion against current landholders. Such a cause of action,

if one were to exist, must be derived from the 1793 Trade

and Intercourse Act. Since the 1793 Trade and Inter-

course Act does not explicitly grant a cause of action to

Indian tribes, any statutory cause of action under the

1793 Act in favor of Indian tribes must be implied from

the statute.

Congressional] intent is the touchstone for determining

whether an implied private right of action can be as-

serted. Middlesex County Sewerage Authority v. Na-

tional Sea Clammers Association, 453 U.S. 1, 13 (1982);

Northwest Airlines, Inc. v. Transport Workers Union,

451 U.S. 77, 91 (1981). Only if Congress intended to

create an implied private right of action under the 1793

Trade and Intercourse Act can the Oneidas assert such

an action against current landholders. The factors used

to determine legislative intent include “the language of

the statute itself, its legislative history, the purpose and

structure of the statutory scheme, and the likelihood that

Congress intended to supersede or to supplement existing

state remedies.”. Northwest Airlines, Inc. v. Transport

Workers Union, 451 U.S. 77, 91 (1981); accord, Mid-

dlesex County Sewerage Authority v. National Sea Clam-

mers Association, 453 U.S. 1, 13 (1982); Universities

Research Association v. Coutu, 450 U.S. 754, 770 (1981).

The first factor used to determine congressional intent

is the language of the statute. Transamerica Mortgage

Advisors, Inc. v. Lewis, 444 U.S. 11, 16 (1979). Section

8, the land transfer provision of the 1793 Trade and

Intercourse Act, provided:

[N]o purchase or grant of lands, or of any title or

claim thereto, from any Indians or nation or tribe

of Indians, within the bounds of the United States,

shall be of any validity in law or equity, unless the

same be made by a treaty or convention entered into

16

pursuant to the constitution; and it shall be a mis-

demeanor, in any person not employed under the au-

thority of the United States, in negotiating such

treaty or convention, punishable by fine not exceed-

ing one thousand dollars, and imprisonment not ex-

ceeding twelve months, directly or indirectly to treat

with any such Indians, nation, or tribe of Indians,

for the title or purchase of any lands by them held

or claimed ....

Act of March 1, 1793, ch. 19, § 8, 1 Stat. 329.

Section 8 is a criminal statute imposing criminal pen-

alties of fines and imprisonment for its violation. This

Court “has rarely inferred a private right of action under

a criminal statute, and where it has done so, ‘there was

at least a statutory basis for inferring that a civil cause

of action of some sort lay in favor of someone.’” Chrys-

ler Corp. v. Brown, 441 U.S. 281, 316 (1979) (quoting

Cort v. Ash, 422 U.S. 66, 79 (1975)). There is nothing

in the language of section 8 that indicates that Congress

intended to permit an Indian tribe to bring a private

right of action to enforce the provisions of section 8. See

Crane, supra n.9, at 863-67.

The legislative history of the 1793 Act likewise pro-

vides no support for an implied right of action in favor

of an Indian tribe to enforce section 8 of the Act. The

1793 Act was enacted to replace the 1790 Trade and

Intercourse Act, which had in turn been intended as a

“declarative law” recognizing the right of Indians to

possess their lands, subject to divestment by the United

States. 1 American State Papers: Indian Affairs 53-55

(1834) (report of Secretary of War Henry Knox).

The federal officials administering the 1790 Act be

came concerned that the means of enforcing the 1790 Act

were inadequate, and urged Congress to add enforce-

ment provisions to the act. See 1 Messsages and Papers

of the President 105 (J. Richardson ed. 1896); 1 Ameri-

can State Papers: Indian Affairs 119; see also Crane,

supra n.9, at 874-75. Congress responded by enacting in

17

the 1793 Trade and Intercourse Act a comprehensive

scheme of enforcement provisions to “give energy to” the

Act. As already noted, section 8 of the 1793 Act made it

a criminal offense to negotiate for the purchase of an in-

terest in Indian land without the approval of the United

States. In the 1793 Act, unauthorized settlement on In-

dian land was made subject to the same criminal penalty.

Act of March 1, 1793, ch. 19, § 5, 1 Stat. 329. In addi-

tion the President was given authority to take such meas-

ures as he might deem necessary to remove unlawful

settlers. Jd. Other sections of the 1793 Act contained

additional enforcement provisions. /d. §§ 1-3, 6.

The comprehensiveness and variety of these enforce-

ment mechanisms shows that Congress did not also intend

to authorize Indian tribes to bring private rights of ac-

tion under the Act against landholders. “In view of

these elaborate enforcement provisions it cannot be as-

sumed that Congress intended to authorize by implication

additional judicial remedies for private citizens .... In

the absence of strong indicia of a contrary congressional

intent, we are compelled to conclude that Congress pro-

vided precisely the remedies it considered appropriate.”

Middlesex County Sewerage Authority v. National Sea

Clammers Association, 453 U.S. 1, 14 (1981). “The com-

prehensive character of the remedial scheme expressly

fashioned by Congress strongly evidences an intent not to

authorize additional remedies.” Northwest Airlines, Inc.

v. Transport Workers Union, 451 U.S. 77, 93-94 & n.30

(1981). If Congress had wanted to authorize such a pri-

vate right of action, “it knew how to do so and [would

have done] so expressly.” Touche, Ross & Co. v. Reding-

ton, 442 U.S. 560, 572 (1979).

© The 1796 Trade and Intercourse Act made clear that this pro-

vision meant that the President was authorized to use military force

to expel unauthorized settlers from Indian land. Act of May 19,

1796, ch. 30, §5, 1 Stat. 469. See, F. Prucha, American Indian

Policy in the Formative Years 145 (1962). On several occasions

this authority was used to evict unauthorized settlers. Prucha,

supra at 154, 159-60, 165-66, 181.

18

The historical context of the 1793 Act and the pur-

pose for its enactment also demonstrate that Congress did

not intend to authorize a private right of action by In-

dian tribes against landholders. Legislation relating to

Indian affairs “cannot be interpreted in isolation but

must be read in light of the common notions of the day

and the assumptions of those who drafted [the legisla-

tion].” Oliphant v. Suquamish Indian Tribe, 435 U.S.

191, 206 (1978). Viewing the 1793 Trade and Inter-

course Act in the context of its times, it is inconceivable

that Congress would have expected Indian tribes to bring

suits or would have intended to provide Indian tribes

with an implied private right of action in federal courts.

The primary aspect of the historical context of the

1793 Act demonstrating that Congress did not intend to

create a private right of action in favor of Indian tribes

is quite simply that Indian tribes did not make a practice

of filing lawsuits in 17938. Writing 40 years after the

enactment of the 1793 Act, Chief Justice Marshall de-

scribed the context of the 1780s and 1790s by stating:

At the time the constitution was framed, the idea of

appealing to an American court of justice for an

assertion of right or a redress of wrong, had per-

haps never entered the mind of an Indian or his

tribe. Their appeal was to the tomahawk, or to the

government. This was well understood by the states-

men who framed the constitution of the United

States, and might furnish some reason for omitting

to enumerate them from among the parties who

might sue in the courts of the union.

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 18

(1831) (emphasis added). Many of the framers of the

Constitution were also members of Congress in 1793, and

would have continued to understand that Indian tribes

would not file suit. Quite apart from whether as a tech-

nical matter Indian tribes had legal capacity to bring

suit or courts had jurisdiction to hear those suits, Con-

gress would not have intended to create an implied pri-

vate right of action for Indian tribes when it was vir-

19

tually inconceivable that Indian tribes would bring such

suits." Any problems arising from inadequate enforce-

ment of the land transfer provision of the 1790 Trade

and Intercourse Act would not have been cured by pro-

viding Indian tribes with a private right of action to en-

force the provision in the 1793 Act. Congress would

have believed that the executive branch of the federal

government would be the only entity that could enforce

the land transfer provision of the 1793 Act. Understand-

ing this, Congress made the executive branch responsible

for enforcing the land transfer provision of the 1793 Act

by establishing criminal penalties and also by authoriz-

ing the President to take “such measures as he might

deem necessary” to remove unauthorized settlers.

Executive branch enforcement of the land transfer

provision of the 1793 Act was also the only practicable

way to accomplish the primary purpose of the 1793 Act.

which was to preserve peace on the frontier. See Oliphant

v. Suquamish Indian Tribe, 435 U.S. 191, 201 (1978)

(purpose of 1790 Act was “to prevent destructive retalia-

tions by the Indians”, quoting President Washington) ;

Mohegan Tribe v. Connecticut, 688 F.2d 612, 622 (2d

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

supra n.10, at 8. In Mohegan Tribe the United States

Court of Appeals for the Second Circuit stated: “it is

true that peace along the frontier, and in particular the

prevention of encroachment by non-Indian settlers on

Indian lands along the frontiers, were primary objects

of the Act’s land provisions.” ™

'' In this context it is important to keep in mind that the 1793

Act was a temporary act that by its terms would only “be in force,

for the term of two years, and from hence to the end of the next

session of Congress, and no longer.” Act of March 1, 1793, ch. 19,

§ 15, 1 Stat. 329. Thus Congress would not have been looking ahead

to a time when Indian tribes would have become sufficiently know!l-

edgeable about the non-Indian culture to be in a position to bring

lawsuits in federal court.

12638 F.2d at 622. One of the leading authorities on the Trade

and Intercourse Act has written:

20

Congress had good reason to be coutcerned with pre-

serving peace on the frontier in 1793. In 1790 and again

in 1791 a United States army had marched into the Ohio

country, and both times the Indian tribes had routed the

army, inflicting heavy casualties. D. Smith, The Aineri-

can Diplomatic Experience 20 (1972). The demon-

strated military prowess of the Indian tribes was made

even more ominous by the presence of British military

posts on United States soil in violation of the Treaty of

Paris of 1783 between Great Britain and the United

States ending the Revolution. Jd. at 19-20. These posts

were widely suspected of providing arms and encourage-

ment to Indian tribes engaging in conflicts with the

United States and held out the promise of an alliance

between Great Britain and the Indian tribes to exploit

American weaknesses in the hope of reversing the oul-

come of the American Revolution. /d.; see F. Cohen,

Handbook of Federal Indian Law 419 (AMS Press re-

print of 1942 edition).

Two events, both occurring after the enactment of the

1793 Act, reduced the military threat posed by the In-

dian tribes. The first was the victory of a United States

army over the northwest Indian tribes at the Battle of

Fallen Timbers, near Detroit, in 1794. D. Smith, The

American Diplomatic Experience 25 (1972); Prucha,

supra n.10, at 156. The second event was the signing of

the Jay Treaty on November 14, 1794, which led to the

removal of British military posts from the United States

The goa! of American statemen was the orderly advance of the

frontier. To maintain the desired order and tranquility it was

necessary to place restrictions on the contacts between the

whites and the Indians. The intercourse acts were thus re-

strictive and prohibitory in nature—aimed largely at restrain-

ing the actions of the whites and providing justice to the In-

dians as the means of preventing hostility. But if the goal

was an orderly advance, it was nevertheless advance of the

frontier, and in the process of reconciling the two elements,

conflict and injustice were often the result.

Prucha, supra n.11, at 3 (emphasis in original) ; see also id. at 48.

21

in 1796. D. Smith, The American, Diplomatic Experience

24-25. The Congress that enacted the 1793 Act could

not have known, of course, that either of these events

would occur.”

III. The Oneida Claim Is Barred Because It Was Not

Brought Until 175 Years After the Conveyance At

Issue.

Assuming arguendo that the Oneidas have a cause of

action under federal law and that the United States has

not ratified the 1794 transaction, the Oneida claim is

nevertheless precluded because it was not brought until

175 years after the 1795 transaction that is the subject

of the claim. First, the courts below should have applied

a federal statute of limitations derived by borrowing the

most analogous state statute of limitations. Regardless

of the particular New York statute of limitations chosen,

the 175-year-old Oneida claim would be barred. Secondly,

the Oneida claim should be barred by the federal law of

laches. Finally, the Oneida claim should be barred with

respect to those landholders who can establish that they

18 The Court of Appeals below apparently overlooked its own

prior decision in Mohegan Tribe as well as the historical context

outlined above when it stated that “[i|t is beyond dispute that

the Nonintercourse Acts were enacted for the protection of Indian

tribes as beneficiaries.” 719 F.2d at 582, Jt. App. at 219a. While

protection of Indian tribes is concededly the purpose of the act

today, 190 years after the Trade and Intercourse Act was first

enacted, the historical context described above shows that the

protection of Indian tribes was not the primary purpose of the land

transfer provision of the 17938 Trade and Intercourse Act. Fur-

thermore, the concept of Indian tribes as wards or beneficiaries of

the federal government acting as their trustee had not been de

veloped in the law in 1793. It was not until 40 years later that

Chief Justice Marshall wrote of Indian tribes: “Their relation to

the United States resembles that of a ward to his guardian.”

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1881); accord,

Felix S. Cohen’s Handbook of Federal Indian Law 220 (1982 ed.)

(“the concept of a federal trust responsibility to Indians evolved

judicially. It first appeared in Chief Justice Marshall’s decision

in Cherokee Nation v. Georgia.’ ).

22

or their predecessors in title are bona fide purchasers

with respect to the Oneida claim.

Statutes of limitation perform an important jurispru-

dential function. As this court has stated:

Statutes of limitation, like the equitable doctrine of

laches, in their conclusive effects are designed to pro-

mote justice by preventing surprises through the

revival of claims that have been allowed to slumber

until evidence has been lost, memories have faded,

and witnesses have disappeared. The theory is that

even if one has a just claim it is unjust not to put

the adversary on notice to defend within the period

of limitation and that the right to be free of stale

claims in time comes to prevail over the right to

prosecute them.

Order of Railroad Telegraphers v. Railway Express

Agency, Inc., 321 U.S. 342, 348-49 (1944) ; accord

Board of Regents v. Tomanio, 446 U.S. 487-88 (1980) ;

United States v. Kubick, 444 U.S. 111, 117 (1979). De-

spite this important judicial function served by statutes

of limitations, both the Court of Appeals and the district

court below held that no statute of limitations applied to

bar the Oneida claims.’ The courts below similarly held

that related defenses, such as laches and bona fide pur-

chaser for value, also did not apply.” In holding that

statutes of limitation did not apply to bar the Oneida

claim, the courts below relied on several other lower

court decisions that have held that such defenses do not

apply to Indian tribes asserting Nonintercourse Act

claims.**

There appear to be two reasons why the courts below

held that time-limitation defenses dc not apply to claims

14 Jt. App. at 282a-33a; id. at 7la-76a.

15 Jt. App. at 232a-33a; id. at 7la-76a.

16 See, e.g., Schaghticoke Tribe of Indians v. Kent School Corp.,

423 F. Supp. 780 (D. Conn. 1976); Narragansett Tribe of Indians

v. Southern Rhode Island Land Development Corp., 418 F. Supp.

798 (D.R.I. 1976).

23

such as the one asserted by the Oneidas. See Crane,

supra n.9, at 855 n.7. First, the courts reasoned that

such defenses are state law defenses and that state law

defenses cannot cut off a federal right. See Jt. App. at

232a. This reasoning completely misconstrues the Coun-

ties’ argument. The Counties assert the statute of limi-

tations defense as a matter of federal law, and refer to

state law solely as a source from which the federal courts

can derive the federal statute of limitations. Federal

courts have often fashioned federal statutes of limita-

tions by borrowing from the most closely analogous state

law. E.g., United Parcel Service, Inc. v. Mitchell, 451

U.S. 56, 60 (1981); Board of Regents v. Tomanio, 446

U.S. 478, 488 (1980); Ernst & Ernst v. Hochfelder, 425

U.S. 185, 210 n.29 (1976). In Tomanio this court stated:

The importance of policies of repose in the federal,

us well as in the state, system is attested to by the

fact that when Congress has provided no statute of

limitations for a substantive claim which is created,

this Court has nonetheless “borrowed” what it con-

sidered to be the most analogous state statute of

limitations to bar tardily commenced proceedings.

[Citation omitted.] This is obviously a judicial rec-

ognition of the fact that Congress, unless it has

spoken to the contrary, did not intend by the mere

creation of a “cause of action” or “claim for relief”

that any plaintiff filing a complaint would auto-

matically prevail if only the necessary elements of

the federal substantive claim for relief could be es-

tablished.

Board of Regents v. Tomanio, 446 U.S. 478, 488 (1980) .%”

' The Court of Appeals held that New York’s statute of limita-

tions should not be borrowed because “[a)pplying New York’s

statute would permit a violation of the 1793 Act to go unremedied,

and thus would be patently inconsistent with the Trade and Inter-

course Acts.” Jt. App. at 232a. This reasoning is plainly wrong.

See Board of Regents v. Tomanio, 446 U.S. 478, 488 (1980) (quoting

Robertson v. Wegmann, 436 U.S. 584, 598 (1978)).

24

The second reason cited by the courts below to deny

the application of the statute of limitations defense to

the Oneida claim is that the defense does not apply to

the United States. Since the United States could bring

suit on behalf of an Indian tribe, and in doing so would

normally be immune from a statute of limitations de-

fense, the courts reasoned that an Indian tribe bringing

suit in its own behalf should have the same immunity as

the United States. The Court of Appeals below stated

“i]t would be anomalous to allow the trustee [i.e. the

United States] to sue under more favorable conditions

than those afforded the tribes themselves.” Jt. App. at

232a.

It is far from obvious, however, why it is “anomalous”

to treat Indian tribes differently from the United States.

The United States, as sovereign, is entitled to immunity

from certain defenses because of its unique governmental

responsibility. This unique governmental responsibility

of the United States makes it eminently reasonable to

treat the United States differently from Indian tribes.

The real anomaly is that this immunity, which is af-

forded to the United States because it is the United

States, can be utilized by an Indian tribe in litigation

in which the United States is not a participant.

The Oneida claim should also be barred by the doc-

trine of laches applied as a matter of federal law. See

Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946);

Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 804-

05 (8th Cir. 1979), cert. denied, 445 U.S. 913 (1980).

The doctrine of laches is one of the principles of repose

applied by federal courts in order to assure

that old grievances will some day be laid to rest,

that litigation will be decided on the basis of evi-

dence that remains reasonably accessible and that

those against whom claims are presented will not be

unduly prejudiced by delay in asserting them.

25

Environmental Defense Fund, Inc. v. Alexander, 614

F.2d 474, 481 (5th Cir.), cert. denied, 449 U.S. 919

(1980).

Laches has been applied by the Supreme Court to bar

Indian claims to land in circumstances considerably less

compelling than those present in this case. In Felix v.

Patrick, 145 U.S. 317 (1892), the heirs of an Indian

sued to recover land from Patrick and his grantees.

Patrick, in violation of an Act of Congress restricting

the transfer of the land, had acquired the land from

Felix under a conveyance that had been procured by

fraud. By the time the suit was brought the land had

become a part of the city of Omaha, Nebraska, and had

greatly appreciated in value.

This Court held that the action was barred by laches.

The real question is, whether equity demands that a

party who, 28 years ago, was unlawfully deprived of

a certificate of muniment of title of the value of

$150, shall now be put in the possession of property

admitted to be worth over a million. The dispropor-

tion is so great that the conscience is startled, and

the inquiry is at once suggested, whether it can be

possible that the defendant has been guilty of fraud

so gross as to involve consequences so disastrous.

Id. at 333. In affirming the dismissal of the action for

laches, the Court emphasized several other considera-

tions, including

that which was wild land thirty years ago is now in-

tersected by streets, subdivided into blocks and lots,

and largely occupied by persons who have bought

upon the strength of Patrick’s title, and have erected

buildings of a permanent character upon their pur-

chases."*

"Id. at 334. See alao Schrimpscher v. Stockton, 188 U.S. 290

(1901); Lemieux v. United States, 15 F.2d 518 (8th Cir. 1926).

Laches was held to be inapplicable to the facts of Ewert v. Blue-

jacket, 259 U.S. 129 (1922), because the defendant in that case,

26

The landholders subject to the Oneida claim stand in a

much more favorable position in the eyes of equity than

did the defendants in Felix v. Patrick. Here the Oneidas

have waited 175 years before bringing their claim, rather

than the 28-year period that had elapsed in Felix. Dur-

ing those 175 years an enormous structure of invest-

ments, expectations, foregone opportunities and other

forms of reliance has been established with respect to the

land on the basis of the validity of the title obtained by

New York in 1795. Consequently, this Court should con-

clude that the Oneida claim is barred by the federal law

of laches.

In addition to being barred by federal statute of limi-

tations and federal laches defenses, the Oneida claim

should also be barred with respect to those landholders

who can establish that they or their predecessors in title

are bona fide purchasers with respect to the Oneida

claim. As this Court recognized in Yankton Sioux Tribe

v. United States, 272 U.S. 351, 357 (1926):

It is impossible, however, to rescind the cession and

restore the Indians to their former rights, because

the lands have been opened to settlement and large

portions of them are now in the possession of in-

numerable innocent purchasers... .

Under the well-established equitable doctrine of bona fide

purchaser, a landholder who can establish that he (1)

purchased property in good faith, (2) without notice of

any defects in title or adverse claims, and (3) for a valu-

able consideration, is immune from an adverse claim.”

an Indian agent who had purchased land from Indians it was his

job to protect, had acted in bad faith, while the doctrine of laches

was “designed to protect good faith transactions.” 259 U.S. at 138.

19 See, e.g., Wright-Blodgett Co. v. United States, 236 U.S. 397,

4038-05 (1915); United States v. California & Oregon Land Co..,

148 U.S. 31, 42 (1898); Colorado Coal & Iron Co. v. United Stctes,

123 U.S. 307, 311-17 (1887); United States v. Koleno, 226 F. 180,

182-88 (8th Cir. 1915); United States v. Eaton Shale Co., 433

F. Supp. 1256, 1267 (D. Colo. 1977); United States v. Demmon,

72 F. Supp. 336 (D. Mont. 1947).

27

If landholders subject to the Oneida claim can satisfy

the three elements of the bona fide purchaser doctrine,

as it appears likely they can, the doctrine should be heid

to provide a complete defense to the Oneida claim.

Courts have long recognized the importance of the

bona fide purchaser doctrine. As Chief Justice Marshall

noted almost 175 years ago, without the doctrine “[a]ll

titles would be insecure, and the intercourse between man

and man would be very seriously obstructed ... .”™

Courts have applied the bona fide purchaser doctrine

to protect purchasers of Indian lands.*' For example, in

Duncan v. Andrus, 517 F. Supp. 1 (N.D. Cal. 1977), the

court ruled that the termination of an Indian rancheria

(a small reservation) by the Secretary of the Interior

was “unlawful and void.” When the rancheria was ter-

minated, the Indians had received fee title to the land

and subsequently over three-fourths of the land was con-

veyed to third parties. In fashioning relief for the void

termination, the court allowed the Indians still holding

the land to reconvey their land to the United States in

trust, but protected the third party purchasers. The

court stated that the Indians who transferred their land

to bona fide purchasers should pursue claims for mone

tary relief against the United States. Jd. at 6. The court

stated :

(T}he rights of third party non-Indian good faith

purchasers, who hold 77% of the residential acreage

* Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 134 (1810); accord

Boone v. Chiles, 35 U.S. (10 Pet.) 177, 210-11 (1836).

*1 See United States v. Debell, 227 F. 760 (8th Cir. 1915) United

States v. Jacobs, 195 F. 707 (8th Cir. 1912): Pechanga Band of

Mission Indians v. Kacor Realty, Inc., No. CU-78-4499-MML, slip op.

at 9 (C.D. Cal. Aug. 22, 1980), aff'd on other grounds, 680 F.2d 71

(9th Cir. 1982), cert. denied, 103 S. Ct. 817 (1983): Duncan v.

Andrus, 517 F. Supp. 1 (N.D. Cal. 1977); Bisek v. Bellanger, 5

F.2d 994 (D. Minn. 1925); ef. Thlocco v. Magnolia Petroleum Co.,

141 F.2d 934 (5th Cir.), cert. denied, 323 U.S. 785 (1944) (bona

fide purchaser of oil and gas lease from Indian protected).

28

on the Rancheria, must be protected. These trans-

ferees may have taken record title without knowl-

edge of the intricacies of the fiduciary obligations of

the Secretary and any resulting ownership defects.

This will be accomplished through a declaration that

only Indian distributees or their Indian transferees

hold under voidable deeds. Only those persons will

have the option of reconveying to the government.

Those distributees who sold their land will retain

their right to pursue monetary remedies in the

Court of Claims.

Id.

The claim asserted by the Oneidas in this case is ex-

traordinary. Their contention that the 1795 acquisition by

New York was void and ineffective to pass title and that

no subsequent events divested them of their right to pos-

session threatens to upset 190 years of land transactions

in New York. The burden of this extraordinary claim

falls most directly on the thousands of private landhold-

ers residing on the ‘and two centuries later, who pur-

chased their land in complete good faith. Under the

theory espoused by the Oneidas and adopted by the courts

below, these innocent landholders are trespassers with no

right to possess the land they hold. If the ruling below

is followed to its logical conclusion, the Oneidas are ap-

parently entitled to obtain ejectment of all the landhold-

ers within the 100,000 acre tract.

The Oneidas, perhaps awed themselves by the audacity

of their claim, suggest that enforcing their purported

right to possession of the 100,000 acre tract is not their

true goal. See Brief of Oneida Indian Nation of Wiscon-

sin and Oneida Indian Nation of New York in Opposition

to Petitions for Certiorari 20-22. Rather, their goal is to

obtain “an equitable settlement implemented by an act of

Congress.” See id. at 20. In an explanation of their

strategy that is the height of understatement, the Oneidas

note that “legal rulings made in this and other suits have

played a constructive role in the legislative settlements,”

id. at 21, and that one “cannot lightly gainsay the fami-

29

liar relation between the availability of judicial redress

and the settlement of claims.” /d. at 22. Phrased more

bluntly, the Oneidas hope to use the threat to innocent

landholders posed by their extraordinary claim to compel

Congress to buy them off.

The Oneidas should not be permitted to use innocent

landholders as their hostages in a war of nerves with

Congress. The Oneidas may well be entitled to some com-

pensation from the federal government for its breach of

duty in failing to protect their interests two centuries

ago. Congress provided a remedy for this breach of duty

in the Indian Claims Commission; the Oneidas invoked

the remedy and prevailed, only to renounce their victory,

undoubtedly in the hope of obtaining a greater recovery

from Congress by pursuing their present strategy.?* Per-

haps the remedy provided by Congress in the Indian

Claims Commission Act was unduly parsimonious, or

perhaps not, but it is for Congress to determine whether

the Oneidas should receive some greater recovery.“ The

Oneidas should not be allowed to bolster their case before

Congress with a claim grounded on the legal fiction—for

it is a fiction—that the federal government intended

100,000 acres in central New York to remain in the pos-

session of the Oneidas for the past 190 years, but stood

by and permitted the State of New York, the Counties

and countless private landholders to develop the wilder-

22 See note 6, supra.

28 The Oneidas are not the only tribe that has sought to turn its

back on the remedy provided by the Indian Claims Commission in

the hope of obtaining a greater recovery from Congress by assert-

ing a present right to possess huge amounts of land. See, e.g..

United States v. Dann, 706 F.2d 919 (9th Cir. 1983), cert. granted,

No. 83-1476 (May 29, 1984) (Indian Claims Commission award of

$26 million covering 22 million acres of land); Oglala Sioux Tribe

of the Pine Ridge Indian Reservation v. United States, 650 F.2d

140 (8th Cir. 1981), cert. denied, 455 U.S. 907 (1982) (Indian

Claims Commission award of $105 million covering 7.3 million

acres of land). In all these cases it is for Congress to determine if

some additiona] recovery is warranted.

80

ness by building cities, homes, farms, businesses, and

highways. The federal government has treated the 1795

acquisition as valid for the past 190 years, and it is sim-

ply too late to reverse that judgment now.

CONCLUSION

The judgment of the Court of Appeals, insofar as it

affirmed the District Court’s holding of liability against

the Counties, should be reversed.

Respectfully submitted,

WILLIAM T. FINLEY, JR.

Counsel of Record

DaAvip F.. B. SMITH

PIERSON SEMMES CROLIUS

AND FINLEY

Canal Square

1054 Thirty-first Street, N.W.

Washington, D.C. 20007

(202) 333-4000