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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1985
- **Citation:** 470 U.S. 226

## Text

Office - Supreme Court, U.S.
FILED

JUL 16 1984

Nos. 83-1065 and 83-1240
ALEXANDER L STEVA
In THE CLERK -

Supreme Court of the United States ae

OCTOBER TERM, 1983

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

THE ONEIDA INDIAN NATION OF NEW YORK, et al.,
— Respondents.

THE STATE OF NEW YORK,
Vv. Petitioner,

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

On Writs of Certiorari to the United States
Court of Appeals for the Second Circuit

BRIEF AMICI CURIAE OF
ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC.,,
NATIONAL CONGRESS OF AMERICAN INDIANS,
SENECA NATION OF INDIANS OF NEW YORK

AND SEMINOLE TRIBE OF FLORIDA
IN SUPPORT OF RESPONDENTS

ARTHUR LAZARUS, JR., P.C.
FRIED, FRANK, HARRIS, SHRIVER
& KAMPELMAN
(A Partnership Including
Professional Corporations)
600 New Hampshire Avenue, N.W.
Suite 1000
Washington, D.C. 20037
(202) 342-3500
Attorney of Record for Association
on American Indian Affairs, Inc.,
National Congress of American
Indians and Seneca Nation
of Indians
JERRY C. STRAUS
Hosss, STRAUS, DEAN & WILDER
1735 New York Avenue, N.W.
Sixth Floor
Of Counsel: Washington, D.C. 20006
(202) 783-5100
=. Bavean Govan Attorney of Record for Seminole
July 16, 1984 Tribe of Florida

EST AVAILABLE COPY

wi wr = .
,

—_—__—_— ee
a

TABLE OF CONTENTS

TABLE OF AUTHORITIES
INTEREST OF AMICI CURIAE
SUMMARY OF ARGUMENT

ARGUMENT

I. This Court and Congress both have recognized
that the Trade and Intercourse Acts authorize
suits by the United States and Indian tribes to
preserve or redeem interests in land

A. This Court already has determined that In-
dian tribes may sue to preserve or redeem
tribal property rights ...

qgpnoscscerereneccssoenccensnessees
. This Court and lower federal courts have rec-
ognized implicitly the validity and justiciabil-
ity of suits brought to redeem tribal property

rights guaranteed under the Trade and Inter-
course Acts

. Congress has manifested an understanding
that the 1834 Trade and Intercourse Act and
its predecessors authorize suits by tribes to
protect their property rights and, because the
1793 Act is substantially identical to the
other statutes, causes of action which exist
under the 1834 Act necessarily are proper
under the 1793 Act

The Oneida Nation and other Indian tribes have
an implied right of action under the 1793 Trade
and Intercourse Act and successor statutes

A. The declaratory language of the 1793 Act and
its legislative history, analyzed in light of the
law of that time, demonstrate a plain intent
on the part of Congress to recognize a right
of action for Indian tribes

ii
TABLE OF CONTENTS—Conrtinued

B. Indian tribes were the intended beneficiaries
of the Trade and Intercourse Acts, and suits
by tribes to redress violations of the Acts
further the legislative purpose ..................--..

C. Because Indian property rights are the exclu-
sive domain of federal law in which state law
is without effect, inference of a cause of ac-
tion based solely on federal law is most
BDPTOPTIALE ..........-00..--c-.ereceseserencrsescserensesesesoosees

III. The rule that ratification of a treaty extinguish-
ing Indian title may not be implied in the absence
of an expression of plain and unambiguous con-
gressional intent rests on settled doctrines of
statutory construction that are of fundamental
importance to the protection of Indian property
a

Page

18

20

21

26

iii
TABLE OF AUTHORITIES
Cases: Page
Antoine V. Washington, 420 U.S. 194 (1974) _....... 24

Assiniboine and Sioux Tribes v. Calvert Explora-
tion Co., 223 F. Supp. 909 (D. Mont. 1963) ......9, 10, 12

Bryan V. Itasca County, 426 U.S. 373 (1976)... 23
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1

EES EE mF Te
Cherokee Nation v. Hitchcock, 187 U.S. 294

(1902) . —_ 7
Cherokee Nation V. Southern Kansas Railway Co.,

I eeres 7
Choctaw & Chickasaw Nations v. Seitz, 193 F.2d

CE 6
Confederated Salish & Kootenai Tribes v. Namen,

665 F.2d 961 (9th Cir. 1982) -..............000. 24
Cort Vv. Ash, 422 U.S. 66 (1975) —.......00.000... 18, 19, 20
Creek Nation v. United States, 318 U.S. 629

(1943) . 6
DeCoteau v. "District ‘County ‘Court, 420 U. S. ‘425

(1975) . — ae +
Federal Power Commission v. - Tuscerore Indian

Nation, 362 U.S. 99 (1960) ....................... ae: 9,10, 19
Heckman V. United States, 224 U.S. 413 (1912)...... 18
Idaho Vv. Andrus, 720 F.2d 1461 (9th Cir. 1983) ...... 22
Jaeger Y. United States, 27 Ct. Cl. 278 (1892)........ 7
Johnson V. M’Intosh, 21 U.S. (8 Wheat.) 543

SS, 15

Klamath Indian Tribe v. Oregon Department of

Fish and Wildlife, 729 F.2d 609 (9th Cir. 1984). 24
Lane V. Pueblo of Santa Rosa, 249 U.S. 110 (1919)... 5, 6,7
“a Tiger V. Western Investment Co., 221 U.S.

286 (1911) .. ae Se oa 18
Marsh Vv. Brooks, 49 US. 223 (1850) . a 10
McCarty Vv. Hollis, 120 F.2d 540 (10th Cir. 1941). 16
Menominee Tribe v. United States, 391 U.S. 404

ESE SSA TE 23
Merrill, Lynch, Pierce, Fenner & Smith v. Curran,
ree 15, 16

Mescalero Apache Tribe v. Jones, 411 U.S. 145
a ane detedeansiontieenetetiiiateeneteneen 2

iv

TABLE OF AUTHORITIES—Continued

Mullen v. United States, 224 U.S. 448 (1912) -........

New Mezico v. Aamodt, 537 F.2d 1102 (10th Cir.
ee

Northwestern Bands of Shoshone Indians v. United
States, 324 U.S. 335 (1945) .

Oliphant v. Suquamish Indian Tribe, 435 U. S. 191
TA ree a

Oneida Indian — v. County of Oneida, 414
GE ile

Oneida Indian Sesion v. County of Oneida, 719
F.2d 525 (2d Cir. 1983) .. ~ 18,

Plains Electric Generation and Transmission Co-
operative Vv. Pueblo of Laguna, 542 F.2d 1375
(10th Cir. 1976) ~..........

Poafpybitty v. Skelly Oil Company, 390 U. s. 365
a

Pueblo of Santa Rosa Vv. . Fall, 273 U. S. 315 (1927).

Puyallup Tribe v. Department of Game, 391 U.S.
892 (1968) .. es

Ramah Navajo School Board v. Bureau of Reve enue,
458 U.S. 832 (1982) ;

Rosebud Sioux Tribe v. Kneip, 430 U. s. 684
(1977) — -_ a
Santa Clara Pueblo V. Mertines, 436 U.S. 49
= ee
Seminole Nation V. United States, 316 U.S. 286
SID” inctennseinnnnntiiinnineteeniieniiiaitedl —
Seneca Nation v. New York, 397 F. “Supp. 685

I
Seneca Nation V. United States, 173 Ct. CL 912
en
Solem Vv. Bartlett, 104 S.Ct. 1161 (1984) ....... —_
Texas & Pacific Railroad v. Rigsby, 241 U.S. 33
RR
Texas Industries, Inc. v. . Radcliff Materials, Inc.,
451 U.S. 680 (1981) ................................

The New York Indians, 72 U.S. (5 Wall.) 761
AR ne AT IR PO a

19, 21

24

10

. 21, 22

2, 22

16

14

v

TABLE OF AUTHORITIES—Continued
Page

Transamerica Mortgage Advisors, Inc. Vv. Lewis,
en 17
United States vy. Boylan, 265 F. 165 (2d Cir. 1920) .. 16
United States v. Candelaria, 271 U.S. 432 (1926) ..7, 8, 16
United States v. City of Salamanca, 27 F. Supp.

8 eee 16
United States v. Colvard, 89 F.2d 312 (4th Cir.
EE ae ee ee ee 16

United States v. Forness, 125 F.2d 928 (2d Cir.),
cert. denied sub nom. City of Salamanca V.

United States, 316 U.S. 694 (1942) —............... 16
Unitec States v. Sandoval, 231 U.S. 28 (1918)... 5
United States v. Santa Fe Pacific Railroad Co., 314

FS ee ee icone ..21, 22, 23
United States v. 7,405 Acres of Land, 97 F.2d 417

RL ES 16
United States v. Southern Pacific Transportation

Co., 543 F.2d 676 (9th Cir. 1976) ..................... 9
Warren Trading Post Co. v. Arizona State Tax

Commission, 380 U.S. 685 (1965) 0.00... 2

Washington v. Washington State Commercial Pas-
senger Fishing Vessel Association, 443 U.S. 658

Statutes:

ee ee 23, 24
Watson Vv. United States, 263 F. 700 (8th Cir.

ee 18
Wilson v. Omaha Indian Tribe, 442 U.S. 653

Ne 19
Yoder v. Assiniboine and Sioux Tribes, 339 F.2d

860 (9th Cir. 1964) 0... siciiaetiiaaliliania 10, 12, 13
ET passim
ee 18
25 U.S.C. $§ 1701-1716 ...........-.-- 13
25 U.S.C. $§ 1721-1735 ......... eS ee ee 18
RE 18
CT ALD m 13

28 U.S.C. § 1331 (a) ...... a sumpunieueasnemasmianes 12

vi

TABLE OF AUTHORITIES—Continued

Page

I O——————————————————EEE a 12

QI RE ___—————————————E 13
General Allotment Act of 1887, c. 119, § 5, 24 Stat.

rn 18

Indian Trade and Intercourse Acts ........................-.-. passim

Act of May 6, 1822, c. 58, § 4, 3 Stat. 682, 683 ...11, 12, 17

Act of March 3, 1863, c. 92, § 9, 12 Stat. 765, 767.. 7

Act of March 3, 1887, c. 359, § 1, 24 Stat. 505...... 7

Act of January 5, 1927, ch. 22, 44 Stat. 932 _........ 21

Pub. L. 89-635, § 1, 80 Stat. 880 (1966) —............... 12

Pub. L. 95-395, 92 Stat. 813 (1978) ~............... 13

Pub. L. 96-420, 94 Stat. 1785 (1980) —..................... 13

Pub. L. 97-399, 96 Stat. 2012 (1982) —.................... 13

Pub. L. 98-134, 97 Stat. 851 (1983) —.................... 13

Congressional Materials:
H. Rep. 2040, 89th Cong., 2d Sess. (1966) ............ 12
Miscellaneous :
I American State Papers (1834) -............. oe 17
III Blackstone Commentaries (1st ed. 1768) ~......... 16

F. Prucha, American Indian Policy in the Forma-
tive Years: The Indian Trade and Intercourse
Acts 1790-1834 (1962) .. — 19
Note, The Canons of Indian Treaty and Statutory
Construction: A Proposal for Codification, 17
U. Mich. J.L. Ref. (1984) _. saussaiiiaciaadh 23

In THE

Supreme Court of the United States

OCTOBER TERM, 1983

Nos. 83-1065 and 83-1240

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

. Petitioners,

THE ONEIDA INDIAN NATION OF NEW YorK, et al.,
Respondents.

THE STATE OF NEW YORK,

Petitioner,
v.

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

Respondents.

On Writs of Certiorari to the United States
Court of Appeals for the Second Circuit

BRIEF AMICI CURIAE OF
ASSOCIATION ON AMERICAN INDIAN AFFAIRS, INC.,
NATIONAL CONGRESS OF AMERICAN INDIANS,
SENECA NATION OF INDIANS OF NEW YORK
AND SEMINOLE TRIBE OF FLORIDA
IN SUPPORT OF RESPONDENTS

Pursuant to Rule 36.2, the Association on American
Indian Affairs, Inc., a tax-exempt organization having
its principal office at 432 Park Avenue South, New York,
New York 10016; the National Congress of American

2

Indians, a corporation having its principal office at 804
D Street, N.E., Washington, D.C. 20002; the Seneca
Nation of Indians of New York, having its principal
office at P.O. Box 231, Salamanca, New York 14779; and
the Seminole Tribe of Florida, having its principal office
at 6073 Stirling Road, Hollywood, Florida 33024; file
the attached brief amici curiae in support of the respond-
ents in the above-captioned case. Petitioners, the Coun-
ties of Oneida and Madison, New York and the State of
New York, and Respondents, the Oneida Indian Nation,
et al., have consented in writing to the filing of this brief.

INTEREST OF AMICI CURIAE

The Association on American Indian Affairs, Inc., is
a nonprofit membership corporation organized under the
laws of the State of New York for the purpose of pro-
tecting the rights and improving the welfare of American
Indians. The Association is the largest Indian-interest
organization in the United States, and is nation-wide in
scope, with a membership of 50,000 that consists of both
Indians and non-Indians. The Association frequently has
participated in leading cases involving issues of Indian
law before the federal and state courts, including the fil-
ing of a brief with this Court in DeCoteau v. District
County Court, 420 U.S. 425 (1975), and the filing of
briefs amicus curiae in Solem v. Bartlett, 104 S.Ct. 1161
(1984), Oliphant v. Suquamish Indian Tribe, 435 U.S.
191 (1978), Mescalero Apache Tribe v. Jones, 411 U.S.
145 (1973), Puyallup Tribe v. Department of Game, 391
U.S. 392 (1968), and Warren Trading Post Co. v. Ari-
zona State Tax Commission, 380 U.S. 685 (1965).

The National Congress of American Indians (“NCAI’’)
was founded in 1944 and is the oldest and largest na-
tional organization of Indian governments and individ-
uals in the United States, with a membership of fed-
erally recognized tribes representing a combined popula-

3

tion of over 750,000 American Indian and Alaska Native
people. NCAI and its membership have a profound con-
cern with the ability of Indian tribes to protect their
property rights. Such property rights are critical to the
survival of Indian tribes as disti:ct cultural entities, and
to the economic development desperately needed to break
the cycle of poverty which has plagued Indian people for
generations.

The Seneca Nation of Indians of New York and the
Seminole Tribe of Florida are federally recognized Indian
tribes which exercise powers of self-government. The
Seneca Nation and Seminole Tribe have engaged in liti-
gation under 25 U.S.C. § 177 in defense of their property
rights. Were the Court to rule that Indian tribes lack
the power to protect their property rights under § 177,
these Indian governments would be deprived of one of
the few remaining means by which they may defend
their reservation lands from illegal takings.

This case presents grave questions of: (1) the con-
tinuing ability of Indian tribal governments to sue in
defense of property rights protected by 25 U.S.C. § 177;
and (2) the standard by which the courts determine
whether any given act of Congress extinguishes tribal
land title.

In order to facilitate the Court’s consideration of the
extremely broad legal and policy implications of this case,
amici have chosen to address the two issues noted above
in a manner somewhat different than the respondents.
Specifically, the attached brief is offered to assist the
Court in recognizing that: (1) the Court previously has
entertained actions by both the United States and Indian
tribes predicated on the Trade and Intercourse Acts, and
Congress has manifested its understanding that such
suits are appropriate; (2) congressional ratification of
illegal takings of Indian land can be accomplished only
by legislation which expresses a plain and unambiguous

4

congressional intent to do so; and (3) a decision by this
Court that tribes have no right to sue for violations of
the Trade and Intercourse Acts will deprive tribes
throughout the nation of the ability currently to defend
their property against unauthorized expropriation.

SUMMARY OF ARGUMENT

Indian tribes generally have capacity to maintain suit
for the protection of their property, a status under law
which has existed from the very inception of this nation
and which was acknowledged as early as 1790 by Presi-
dent Washington. This Court and the lower federal
courts also have recognized the specific right of the
United States and Indian tribes, jointly or separately, to
sue for redress of violations of the Trade and Intercourse
Acts. Such suits not only address ancient wrongs, but
serve more particularly to protect reservation lands cur-
rently from unauthorized invasions or illegal expropria-
tions.

In accordance with applicable canons of statutory con-
struction, Indian tribes have possessed an implied right
of action under all the Trade and Intercourse Acts. In
addition to the language and legislative histories of these
Acts, Congress clearly manifested its intent to sanction
private suits by Indian tribes through an 1822 amend-
ment to the 1802 Act assigning the burden of proof in
trials concerning property rights “in which Indians shall
be a party. ...” Indian tribes were the intended bene-
ficiaries of the Trade and Intercourse Acts, and suits by
tribes to redress violations of the Act obviously further
the legislative purpose.

Congressional ratification of illegal takings of Indian
land may not be implied absent a showing of a plain and
unambiguous legislative intent to achieve that result.
Such an intent does not exist in this case.

5
ARGUMENT

I. This Court and Congress both have recognized that the
Trade and Intercourse Acts authorize suits by the
United States and Indian tribes to preserve or redeem
interests in land.

A. This Court already has determined that Indian
tribes may sue to preserve or redeem tribal prop-
erty rights.

The seminal case regarding the right of Indian tribes
to sue in order to protect their real property interests
is Lane Vv. Pueblo of Santa Rosa, 249 U.S. 110 (1919).
In that case, the Pueblo sued to enjoin the Secretary of
the Interior from disposing of lands in which the Pueblo
claimed a property interest. The United States defended
on the ground that the Pueblo was not a legal entity and
lacked capacity to sue. This Court rejected the argument,
noting first that the Pueblo’s status as an Indian govern-
ment' alone was sufficient to give it the capacity to sue:

During the Spanish, as also the Mexican, dominion,
it enjoyed a large measure of local self-government
and was recognized as having capacity to acquire
and hold lands and other property. With much rea-
son this might be regarded as enabling and entitling
it to become a suitor for the purpose of enforcing or
defending its property interests.

249 U.S. at 112. (Emphasis added.)

The Court ultimately relied upon a territorial statute
in holding that the Pueblo could maintain its suit. Jd.
The Lane case, however, is memorable for the preceden-
tial views expressed therein regarding the general capacity

1! The rule that Indian pueblos have essentially the same status
as Indian tribes was established in United States v. Sandoval, 231
U.S. 28 (1913).

6

of Indian tribes to sue in defense of their property. Thus,
in Creek Nation v. United States, 318 U.S. 629, 640
(1943), the Court observed, citing Lane and other cases,
that the Creek Nation and Seminole Nation “had .. . as
a general legal right . . . the power to bring actions on
their own behalf.” Similarly, in Poafpybitty v. Skelly Oil
Company, 390 U.S. 365 (1968), the Court quoted with
approval a lower court statement that the past decisions
of this Court “clearly recognized the rights of .. . In-
dian tribes or pueblos to maintain actions with respect
to their lands... .” Jd. at 371, quoting Choctaw &
Chickasaw Nations v. Seitz, 193 F.2d 456, 459 (10th Cir.
1951).

Petitioners do not dispute tribal capacity to sue, but
argue instead that judicial recognition of such capacity
is a recent phenomenon. Thus, they posit, Congress could
not have intended to allow actions by tribes to redeem
rights granted under the 1793 Act. Act of March 1,
1793, c. 19, § 8, 1 Stat. 329, 330. What the petitioners
fail to mention is that questions about tribal capacity to
sue arose towards the beginning of the Twentieth Cen-
tury, not the Nineteenth, and, when the issue finally was
raised, it was resolved in the tribes’ favor in no uncer-
tain terms: “Of their capacity to maintain such a suit,
we entertain no doubt.” Lane, supra, 249 U.S. at 113.

In the landmark case of Cherokee Nation v. Georgia,
30 U.S. (5 Pet.) 1 (1831), this Court decided that an
Indian tribe is a “state,”* but not a “foreign state”

2 Just as the Pueblo of Santa Rosa under Spanish and Mexican
law, the Cherokee Nation under American law “enjoyed a large
measure of local self-government and was recognized as having
capacity to acquire and hold lands and other property.” Cf. Lane
v. Pueblo of Santa Rosa, supra, 249 U.S. at 112. Having the capacity
to treat with the United States for the purpose of acquirirg, ced-
ing and selling real property, the Cherokee Nation must have had
the capacity to sue for the protection of those rights. /d.

7

within the meaning of Article III of the Constitution
and, therefore, not capable of bringing an original peti-
tion against one of the United States in the Supreme
Court. Jd. at 15-16. In so holding, the Court not only
did not question the Cherokee Nation’s capacity to sue,
but impliedly affirmed that right, saying: “If it be true
that the Cherokee Nation have rights, this is not the
tribunal in which those rights are to be asserted.” Id.
at 20 (emphasis added). Thus, in the Court’s view, the
issue was not whether the Cherokee Nation could sue,
but, rather, in what court it might do so.* Petitioners’
reliance upon Cherokee Nation for the proposition that
Indian tribes long were regarded as lacking capacity to
sue, therefore, is wholly misplaced.* See also Cherokee
Nation v. Southern Kansas Railway Co., 135 U.S. 641
(1890); Cherokee Nation v. Hitchcock, 187 U.S. 294
(1902).

8 Significantly, one of the claims of the Cherokee Nation was that
the Georgia laws violated the Trade and Intercourse Act of 1802.
Cherokee Nation, supra, 30 U.S. at 7.

* Petitioners’ reliance on Jaeger v. United States, 27 Ct. Cl. 278
(1892) also is misplaced. The Jaeger court suggested in dicta that
Cherokee Nation and other cases discussing the wardship status of
Indian tribes yielded a general lack of capacity to sue. The Jaeger
court simply was mistaken, perhaps because Indian tribes expressly
were barred frorn filing suit in the Court of Claims—a statutory
bar, incidentally, which need not have been created if the tribes
had no capacity to sue. See § 9 of the Act of March 3, 1863, c. 92,
12 Stat. 765, 767; § 1 of the Tucker Act of March 3, 1887, c. 359, 24
Stat. 505. Later decisions of this Court make clear that the tribes’
status as wards of the federal government imposes no disability in
terms of their right to sue to protect their property rights. United
States v. Candelaria, 271 U.S. 432 (1926): Lane v. Pueblo of Santa
Rosa, supra. That few cases involving tribes were brought in fed-
eral courts reflects the fact that they were courts of limited juris-
diction, not a lack of tribal capacity.

8

B. This Court and lower federal courts have recog-
nized implicitly the validity and justiciability of
suits brought to redeem tribal property rights
guaranteed under the Trade and Intercourse Acts.

In United States v. Candelaria, 271 U.S. 482 (1926),
the United States filed suit to quiet title against certain
persons who were asserting what was alleged to be a
false claim to certain lands belonging to the Pueblo of
Laguna by virtue of a Spanish grant. “The suit was
brought on the theory that these Indians are wards of
the United States and that it therefore has authority and
is under a duty to protect them in the ownership and
enjoyment of their lands.” Jd. at 437. Although the
source of the defendants’ claim of title to the lands is not
made clear in the opinion, two prior court decrees were
asserted by the defendants as a bar to the suit. The
United States had not participated in the prior litigation.

The key issue in Candelaria was whether the previous
judgments passed good title to the defendants. This
Court ruled that they did not because they were not ren-
dered in compliance with the Trade and Intercourse Acts.
Specifically, after noting the existence of both the 1834
Act and an i851 statute extending that Act’s coverage
to tribes in New Mexico (271 U.S. at 441, citing Act of
June 30, 1834, c. 161, § 12, 4 Stat. 729, 730, 25 U.S.C.
§ 177), the Court said:

A judgment or decree which operates directly or in-
directly to transfer the lands from the Indians,
where the United States has not authorized or ap-
peared in the suit, infringes that restriction. The
United States has an interest in maintaining and
enforcing the restriction which cannot be affected by
such a judgment or decree.

Candelaria, supra, 271 U.S. at 443-44. Thus, in a case
in which, like the case at bar, a Trade and Intercourse
Act right underlay the claim, the United States was

9

found capable of filing suit to redeem the property of an
Indian tribe.

The authority of the United States to file suit under
the 1834 Act never has been deemed exclusive. Accord-
ingly, in Federal Power Commission v. Tuscarora In-
dian Nation, 362 U.S. 99 (1960), the Tuscarora Nation
intervened in a Federal Power Commission proceeding
in which an application for a project license by the
Power Authority of the State of New York was under
consideration. The Tuscaroras urged that the Power
Authority lacked the ability to condemn tribal land, since
such a condemnation would violate the Trade and Inter-
course Act. /d. at 118-19. The Court ruled that, as a
federal licensee, the Power Authority stood on the same
footing as the United States, and because the Trade and
Intercourse Act did not apply to takings of Indian land
by the United States, neither did it apply to the taking
by the Power Authority. At no point, however, did the
Court question the Tuscarora Nation’s ability to raise the
Trade and Intercourse Act in defense of its property
rights.

Representative cases in the lower federal courts also
show the validity of tribal suits under the Trade and
Intercourse Acts as well as the versatility, vitality and
continued utility of the 1834 Act, even outside the con-
text of the eastern Indian land claims.® Thus, in United
States v. Southern Pacific Transportation Co., 543 F.2d
676 (9th Cir. 1976), both a tribe and the United States
successfully sued for relief from an alleged easement
granted in violation of § 177. Moreover, in Assiniboine
and Sioux Tribes Vv. Calvert Exploration Co., 223 F. Supp.

5 Cf. Pueblo of Santa Rosa vy. Fall, 273 U.S. 315 (1927) (An im-
provident contract between a tribe and an attorney found void
under § 177); The New York Indians, 72 U.S. (5 Wall.) 761, 771
(1867) (Title acquired pursuant to a tax sale for taxes illegally
assessed on tribal property can be voided under the Trade and Inter-
course Act).

10

909 (D. Mont. 1963), rev’d sub nom., Yoder v. Assini-
boine and Sioux Tribes, 339 F.2d 360 (9th Cir. 1964),
the Tribes alone employed § 177 as a basis for a suit to
prevent tribal lands from being pooled with the lands of
others to form a “spacing unit” for oil and gas develop-
ment. In Seneca Nation v. New York, 397 F. Supp. 685
(W.D. N.\. 1975), the tribe used § 177 to block a wrong-
ful taking of reservation lands for highway purposes.°

In short, for the Court to rule that the Oneida Nation
does not possess a right to sue under the 1793 Act would
be to reverse longstanding judicial precedents, including
prior decisions of this Court, and to strip from Indian
tribes today a key weapon in the very limited arsenal
they retain to protect their lands from invasion and
abuse.

C. Congress has manifested an understanding that the
1834 Trade and Intercourse Act and its predeces-
sors authorize suits by tribes to protect their prop-
erty rights and, because the 1793 Act is substan-
tively identical to the other statutes, causes of
action which exist under the 1834 Act necessarily
are proper under the 1793 Act.

The cases discussed above which were founded upon
the Trade and Intercourse Act, as well as those uphold-
ing the right of tribes to sue to protect and redeem their
property interests, all arose after the 1793 Act had ex-
pired and had been replaced by later legislation. Of par-

6 The courts are open even to non-Indians to make claims under
the Trade and Intercourse Act. Thus, in Marsh v. Brooks, 49 US.
223, 233 (1850), the Court remarked “That an action in ejectment
could be maintained on an Indian right to occupancy and use, is
not open to question.” To say that an act passed to “prevent un-
fair, improvident or improper dispositions by Indians of land
owned or possessed by them,” Federal Power Comm’n vy. Tuscarora
Indian Nation, 362 U.S. 99, 119 (1960), may be relied upon in
court by non-Indians, but not by the Indians for whose protection
the statute was passed, is nonsensical.

11

ticular importance among these successor statutes is, of
course, the provision of the 1834 Act, c. 161, §12, 4
Stat. 730, which now is codified at 25 U.S.C. § 177. Sec-
tion 8 of the 1793 Act is identical in its substantive
aspects to § 12 of the 1834 Act, as are the pertinent pro-
visions of the Acts of 1790, 1796, 1799 and 1802." In
short, in terms of whether their language forms the
basis for a tribal cause of action, all the Trade and
Intercourse Acts are indistinguishable.

Moreover, an 1822 amendment to the 1802 Act (Act
of May 6, 1822, c. 58, §4, 3 Stat. 682, 683) strongly
suggests that all the former Acts were intended to au-
thorize actions by Indians for the protection of their
property interests. That amendment provided:

[I}n all trials about the right of property, in which
Indians shall be a party on one side and white per-
sons on the other, the burden of proof shall rest
upon the white person, in every case in which the
Indian shall make out a presumption of title in him-
self from the fact of previous possession and owner-

ship.*
If the 1822 Act had contained a provision specifically au-
thorizing suits by Indians to protect their rights, a possi-
ble argument could be made that this amendment author-

* Compare Act of July 22, 1790, c. 33, § 4, 1 Stat. 187, 138; Act of
March 1, 1793, c. 19, § 8, 1 Stat. 329, 330; Act of May 19, 1796, c. 30,
§ 12, 1 Stat. 469, 472; Act of March 3, 1799, c. 46, § 12, 1 Stat. 743,
746; Act of March 30, 1802, c. 13, § 12, 2 Stat. 139, 148; Act of
June 30, 1834, c. 161, § 12, 4 Stat. 729, 730.

§ The amendment clearly contemplates suits in which the Indian
parties are the plaintiffs. If a white person filed suit against an
Indian, as the plaintiff, the white person would bear the burden of
proof even in the absence of the 1822 amendment. Thus, the
amendment must have been intended to apply to suits brought by
Indian plaintiffs against non-Indian defendants, lest it be ren-
dered a redundancy. Indeed, Indian tribes could not be named
defendants in a title dispute because of their sovereign immunity.
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

12

ized such actions where the Acts of 1790, 1793, 1796,
1799 and 1802 did not. No such provision exists, how-
ever. The only provisions of the Acts which conceivably
could give rise to “trials about the right of property”
between an Indian and a non-Indian are the counter-
parts of §12 of the 1834 Act. Those sections, being
identical in substance to Section 8 of the 1793 Act, must
have the same effect of giving rise to a cause of action.
In other words, rather than creating a cause of action
which had not existed previously, the 1822 amendment
to the 1802 Act merely created a new rule regarding the
burden of proof in a cause of action which had existed
since passage of the first Trade and Intercourse Act in
1790. Thus, Congress long ago made clear its under-
standing that Indians have capacity to sue under the
Trade and Intercourse Acts.

That understanding continues through modern times.
As recently as 1966, for example, Congress enacted leg-
islation for the primary purpose of removing the $10,000
jurisdictional limitation of 28 U.S.C. § 1331(a) in suits
involving Indian tribes and raising a federal question.
Pub. L. 89-635, § 1, 80 Stat. 880 (1966), codified at 28
U.S.C. § 1362. In considering that legislation, the House
Judiciary Committee expressed particular concern about
the decision in Yoder v. Assiniboine and Sioux Tribes,
339 F.2d 360 (9th Cir. 1964). See H. Rep. 2040, 89th
Cong., 2d Sess. 2-3 (1966).

In Yoder, the Tribes had filed suit to enjoin the en-
forcement of a State order requiring that lands owned
by the tribes be pooled with lands owned by another to
form a “spacing unit” for the drilling of an oil and gas
well. The Tribes sued on the theory, inter alia, that the
State order “constituted an alienation of tribal property
in violation of 25 U.S.C. $177. . . .” Assiniboine and
Siouz Tribes v. Calvert Exploration Co., 223 F. Supp.
909, 912 (D. Mont. 1963). The Court of Appeals, how-

13

ever, held that the federal courts lacked jurisdiction
over the matter because of the Tribes’ failure to estab-
lish the $10,000 minimum. Yoder v. Assiniboine and
Sioux Tribes, supra, 339 F.2d at 364. In eliminating
that rule, Congress made plain its awareness and ap-
proval of suits by tribes to vindicate property rights un-
der the Trade and Intercourse Acts.

Another indication of Congress’ continuing belief in
the tribes’ right to sue is found in 28 U.S.C. § 2415. In
1982, Congress made the statute of limitations on claims
for money damages brought by the United States also
applicable to Indian tribes. Two important points arise
from § 2415. First, the statute clearly recognizes the
right of Indian tribes to sue in defense of their property
rights. Second, the statute expressly exempts from its
coverage actions “to establish the title to, or right to
possession of, real or personal property.” § 2415(c).
Thus, Congress both recognized tribal capacity to sue for
possession of property and refused to limit the time for
bringing such actions. Congress did so fully aware of
the land claims by tribes then and still pending in the
courts.

Finally, the recent spate of legislation settling various
tribal Jand claims under the Trade and Intercourse Acts
reflects Congress’ current understanding that such suits
are proper.’ Although Congress undoubtedly did not in-
tend to suggest its views on the merits of any of these
claims, the acts reflect at least a congressional belief that
the tribal causes of action, in the abstract, were sound.

® The settlement acts passed thus far are: Rhode Island Indian
Claims Settlement Act, Pub. L. 95-395, 92 Stat. 813 (1978). codi-
fied at 25 U.S.C. §§ 1701-1716; Maine Indian Claims Settlement
Act, Pub. L. 96-420, 94 Stat. 1785 (1980), codified at 25 U.S.C.
$§ 1721-1735; Florida Indian Land Claims Settlement Act, Pub. L.
97-399, 96 Stat. 2012 (1982), codified at 25 U.S.C. $§ 1741-1749;
and Mashantucket Pequot Indian Claims Settlement Act, Pub. L.
98-134, 97 Stat. 851 (1983), codified at 25 U.S.C. §§ 1751-1760.

14

The legislative histories of these statutes give no indica-
tion that Congress entertained any doubt as to the the-
oretical validity of tribal claims under the Trade and
Intercourse Acts.

In summary, this Court on several occasions has taken
cognizance of tribal claims arising under the Trade and
Intercourse Act of 1834. The 1834 Act being identical
to its predecessors in all pertinent respects, the same re-
sult must obtain with regard to the prior acts. Because
Indian tribes always have .been recognized as having
capacity to sue in defense of their property rights, and
because the tribes are the intended beneficiaries of the
Acts, they necessarily are able to sue for violations of
the Acts. (See Point II, infra.) This result is consist-
ent with the understanding and intent of the Congress
when the laws were enacted and of Congress presently.

II. The Oneida Nation and other Indian tribes have an
implied right of action under the 1793 Trade and Inter-
course Act and successor statutes.

A. The declaratory language of the 1793 Act and its
legislative history, analyzed in light of the law of
that time, demonstrate a plain intent on the part
of Congress to recognize a right of action for Indian
tribes.

In determining whether a federal statute gives rise to
a cause of action for a private party, the intent of Con-
gress governs. Texas Industries, Inc. Vv. Radcliff Mate-
rials, Inc., 451 U.S. 630 (1981). The statutory language,
of course, is critical. Section 8 of the 1793 Act provided
that “no purchase or grant of lands . . . from any In-
dians or nation or tribe of Indians . . . shall be of any
validity in law or equity. . .” unless made in compliance
with the Act. 1 Stat. 330. This language, read in light
of the prevailing rules of law existing at the time of its

15

enactment,” clearly was intended to recognize and con-
fer a right of action in and to Indian tribes for viola-
tions of the Act. More specifically, three aspects of the
contemporary legal context within which the 1793 Act
was adopted combine to erase all doubt as to the intent
of Congress: (1) the law of Indian title; (2) the law
regarding remedies for breaches of rights; and (3) the
law regarding tribal capacity to sue.

Tribal property rights unquestionably were accorded
legal validity and effect under American law from the
earliest days of the nation. Thus, in Johnson v. M’In-
tosh, 21 US. (8 Wheat.) 543 (1823), the Court ob-
served that, at the time of their discovery by the Euro-
peans, Indian tribes “were admitted to be the rightful
occupants of the soil, with a legal as well as just claim
to retain possession of it... .” Id. at 574 (emphasis
added). The only defect in Indian title was that “their
power to dispose of the soil at their own will, to whom-
soever they pleased, was denied. .. .” Id. These rules
of law predated the Constitution, and the 1793 Act
merely codified the rules which existed at common law.
Oneida Indian Nation v. County of Oneida, 414 U.S. 661,
678 (1974).

The Indian right of occupancy was not a naked right
lacking means of enforcement. “That an action in eject-
ment could be maintained on an Indian right to occu-
pancy and use, 13 not open to question. This is the result
of the decision in Johnson v. M’Intosh. .. .” Marsh v.
Brooks, 49 U.S. 223, 232 (1850). No other rule could
be said to exist. Except where a remedy was afforded
by the mere act of the parties or by mere operation of
law, the common law held that “where there is a legal

1 This Court previously has recognized the significance of the
contemporary legal context under which a statute is enacted. Mer-
rill Lynch, Pierce, Fenner & Smith v. Curran, 456 U.S. 353, 378
(1982).

16

right, there is also a legal remedy, by suit or action at
law, whenever that right is invaded.” III Blackstone
Commentaries 23 (1st ed. 1768).

The rule that a right could not exist without remedy
applied to rights recognized or created by statute, par-
ticularly the simpler statutes of that simpler time:

“When federal statutes were less comprehensive, the
Court applied a relatively simple test to determine
the availability of an implied private remedy. If a
statute was enacted for the benefit of a special class,
the judiciary normally recognized a remedy for
members of that class. . . . Under this approach,
federal courts, following a common-law tradition,
regarded the denial of a remedy as the exception
rather than the rule.

Merrill Lynch, Pierce, Fenner & Smith v. Curran, supra,
456 U.S. at 374-75. And see Texas & Pacific Railway
Co. v. Rigsby, 241 U.S. 33 (1916). Indian tribes clearly
were the intended beneficiaries of the 1793 Act, see dis-
cussion below, and the courts, therefore, would imply a
remedy for invasions of the statutory right.”

Finally, all three branches of government in the early
Nineteenth Century shared a belief that tribes were

11 The courts did so on numerous occasions under the 1834 Act,
the operative provision of which is identical in substance to § 8 of
the 1793 Act. See discussion, supra, at 9-10. Thus, in United
States v. Boylan, 265 F. 165 (2d Cir. 1920), the United States sued
on behalf of the Oneidas to set aside a conveyance and partition
judgment under the 1834 Act. Several similar suits have been
sanctioned by this Court and lower federal courts. See United
States vy. Candelaria, supra; United States v. Colvard, 89 F.2d 312
(4th Cir. 1937); United States v. 7,405.3 Acres of Land, 97 F.2d
417 (4th Cir. 1938); McCarty v. Hollis, 120 F.2d 540 (10th Cir.
1941); United States v. Forness, 125 F.2d 928 (2d Cir.), cert.
denied sub nom., City of Salamanca v. United States, 316 U.S. 694
(1942); United States vy. City of Salamanca, 27 F. Supp. 541
(W.D.N.Y. 1939).

17

capable suitors. The executive branch so believed, as can
be seen in President Washington’s speech to the Seneca
Nation in 1790: “Here, then, is the security for the re-
mainder of your lands. ... [T]he federal courts will
be open to you for redress. .. .” I American State
Papers, Indian Affairs 139 (1834). Congress concurred
in this view, as may be seen in the Act of May 6, 1822,
supra, apportioning the burden of proof in “trials about
the right of property in which Indians shall be a party
on one side and white persons on the other... .” See
discussion, supra, at 11-12. This Court never doubted
the right of Indian tribes to sue to protect their inter-
ests. See discussion, supra, at 6-7, concerning the 1831
case of Cherokee Nation v. Georgia.

Certainly by the time Congress considered the 1834
Act, it was aware that Indian tribes were assumed to
possess legal capacity to sue. Had it not concurred in
this assumption, Congress could and undoubtedly would
have expressed its disagreement by altering the opera-
tive provisions of the Trade and Intercourse Act. By
reenacting the provisions of prior acts without material
amendment, Congress indicated its acceptance of the
status quo and its intent that tribes would continue to
be able to maintain suits.

The statutory language plainly speaks to the existence
of a private right of action. By declaring void convey-
ances made in violation of the Act, Congress must have
intended that tribes have “the customary legal incident”
of that declaration—a right of action. Cf., Transamerica
Mortgage Advisors, Inc. Vv. Lewis, 444 U.S. 11, 19
(1979). This is particularly true in light of this Court’s
rule of construction that ambiguities in statutes enacted
for the benefit of Indians must be resolved in their favor.
&.g., Ramah Navajo School Board v. Bureau of Revenue,
458 U.S. 832, 838 (1982); see also cases cited infra,
n.15.

18

Another major Indian land law has been construed on
many occasions to provide a cause of action where none
is granted expressly. The General Allotment Act of
1887, c. 119, § 5, 24 Stat. 389, 25 U.S.C. § 348, provides
that conveyances of Indian allotments prior to the ex-
piration of the trust period “shall be void and of no
effect.” Although no right of action is authorized ex-
pressly, this Court and others often have recognized ac-
tions under the General Allotment Act and similar stat-
utes. Many such actions have been brought by the
United States, e.g., Heckman v. United States, 224 US.
413 (1912); Mullen v. United States, 224 U.S. 448
(1912) ; Watson v. United States, 263 F. 700 (8th Cir.
1920); but other suits were brought by the Indian al-
lottees themselves. E.g., Poafpybitty v. Skelly Oil Co.,
supra; cf., Marchie Tiger V. Western Investment Co.,
221 U.S. 286 (1911).

Recognition of a tribal right of action under the 1793
Act, therefore, is consistent with the statutory language
and legislative history, the prevailing law as of that
date, and judicial construction of similar statutes passed
for the benefit of Indians.

B. Indian tribes were the intended beneficiaries of the
Trade and Intercourse Acts, and suits by tribes to
redress violations of the Acts further the legislative

purpose.

In determining whether a statute gives rise to a cause
of action, a key inquiry is whether the plaintiff is “ ‘one
of the class for whose especial benefil the statute was
enacted,’—that is, does the statute create a federal right
in favor of the plaintiff?” Cort v. Ash, 422 U.S. 66, 78
(1975) (citations omitted). In this case, the answer to
this inquiry clearly must be in the affirmative. As the
court below observed, “the language and purpose of the
1793 Act are unequivocal in their purpose to protect the
Indians.” Oneida Indian Nation v. County of Oneida,

19

719 F.2d 525, 533 (2d Cir. 1983). See, e.g., Federal
Power Commission v. Tuscarora Indian Nation, 362 U.S.
99, 119 (1960) ; Wilson v. Omaha Indian Tribe, 442 U.S.
653, 664 (1979).

Petitioners attempt to escape this result by arguing
that the sole purpose of the Act was to ensure the or-
derly advance of the frontier by preventing uprisings by
the Indians. (Counties’ Br. at 24; State’s Br. at 21, n.)
To be sure, the ultimate goal of all federal policy during
this era was the advancement of the frontier and the
preservation of peace. F. Prucha, American Indian Pol-
icy in the Formative Years: The Indian Trade and In-
tercourse Acts 1790-1834 (1962) at 3. The petitioners’
argument, however, fails to comprehend that the Trade
and Intercourse Acts furthered these general policy goals
by giving effect to the particular goal of protecting In-
dians in their property rights. “The intercourse acts
were thus restrictive and prohibitory in nature—aimed
largely at restraining the actions of the whites and pro-
viding justice to the Indians as the means of preventing
hostility.” F. Prucha, id. (emphasis added). Thws, the
Oneida Nation is part “of the class for whose especial
benefit the statute was enacted... .” Cort v. Ash, supra,
at 78. The Trade and Intercourse Acts “create[d] a
federal right in favor of the plaintiff”, id., and all other
tribes, for the purpose of protecting their property
rights, so that the overall goal of American policy—
orderly advancement of the frontier—would be furthered.

Another relevant inquiry is whether implying a pri-
vate right of action is consistent with the legislative pur-
pose. Cort v. Ash, supra, at 78. As the court below
noted, “the purposes of the 1793 Trade and Intercourse
Act are best served by the implication of a private right
of action.” 719 F.2d at 586. That conclusion seems self-
evident. Quite obviously, private actions by Indians fur-
ther the Act’s purpose of protecting Indian property
rights.

20

The Counties present a fatuous argument to the effect
that removal of trespassers by the military better served
the cause of peace on the frontier than did private civil
litigation. (Counties’ Br. at 21-23.) That the cause of
peace is better served by military action than the civility
and solemnity of the courtroom is a proposition unworthy
of consideration.”

C. Because Indian property rights are the exclusive
domain of federal law in which state law is without
effect, inference of a cause of action based solely on
federal law is most appropriate.

Indian property rights clearly are the exclusive do-
main of federal law. As this Court observed in Oneida
Indian Nation v. County of Oneida, supra, “Once the
United States was organized and the Constitution
adopted, these tribal rights to Indian lands became the
exclusive province of the federal law.” 414 U.S. at 667.
Thus, a cause of action under the Trade and Intercourse
Act clearly is not one

traditionally relegated to state law, in an area basi-
cally the concern of the States, so that it would be
inappropriate to infer a cause of action based solely
on federal law... .

Cort v. Ash, supra, 422 U.S. at 78. Indeed, the property
rights of tribes are so clearly the domain of federal law
as to demand recognition of a cause of action for Indian
tribes to protect those rights.

12 The Counties also argue that the “numerous express remedies”
contained in the 1793 Act (Counties’ Br. at 23) were sufficient to
serve the Act’s purpose. In fact, only two remedies are provided
for expressly: criminal fines and imprisonment. The reference to
“numerous” remedies for the violations of provisions of the Act
unrelated to Indian land is an attempt to distract the attention of
the Court. Moreover, the 1790 Act contained no express remedy for
unauthorized conveyances of Indian land. Thus, unless a private
action is implied, Congress had created a right without remedy—
the bane of the law.

21

III. The rule that ratification of a treaty extinguishing
Indian title may not be implied in the absence of an
expression of plain and unambiguous congressional
intent rests on settled doctrines of statutory construc-
tion that are of fundamental importance to the pro-
tection of Indian property rights.

The Court of Appeals, applying the seminal standard
articulated in United States v. Santa Fe Pacific Railroad
Co., 314 U.S. 339 (1941), held that any implied ratifica-
tion of the 1795 New York-Oneida treaty could be based
only upon a “plain and unambiguous” expression of in-
tent by Congress. 719 F.2d at 539. Petitioner Counties
have urged rejection of that test and have proposed the
following tortured language to replace it: ™

(T]here need only be explicit recognition by the
federal government of the transaction in issue in a
manner that reveals the implicit approval thereof."

8 In arguing that it has shown “plain and unambiguous congres-
sional intent” for a subsequent ratification of the 1795 New York-
Oneida transaction, the State tacitly has acknowledged the correct-
ness of the “plain and unambiguous” standard. See State’s Br. at 36.

Counties’ Br. at 41. This proposed test is derived from lan-
guage in the Court of Claims’ decision in Seneca Nation v. United
States, 173 Ct. Cl. 912 (1965). The court in Seneca Nation failed
to mention Santa Fe Pacific and, instead, articulated a new test
based on “explicit recognition and implicit ratification,” Seneca
Nation, supra, at 915. That formulation has not been followed by
any other court.

The relevant statute in Seneca Nation, Act of January 5, 1927,
c. 22, 44 Stat. 932 (1927), applied New York State hunting and
fishing laws to the Seneca reservations, with a proviso that “this
act shall be inapplicable to lands formerly in the Oil Spring Reser-
vation and heretofore acquired by the State of New York in con-
demnation proceedings.” Although the statute thus reveals a con-
gressional awareness that a land transaction had occurred, it re-
veals no understanding on Congress’ part that the transaction
lacked validity under the Trade and Intercourse Act of 1834 or that
Congress’ action would extinguish the Senecas’ title. This language,
therefore, falls far short of the “plain and unambiguous” standard.
To extinguish Indian title, Congress must be aware, at least, that

22

The Counties expand even this vague rubric by arguing
that “ratification need not be explicit to be effective”
(Counties’ Br. at 41), and further suggest that “the in-
tent of the government” to ratify can be gleaned from
four “factors” —

(a) the operative language of the statute or treaty,
(b) legislative history, (c) the surrounding circum-
stances, and (d) the historical exercise of state or
tribal jurisdiction over the territory.

Counties’ Br. at 41.

The Counties’ four factors are derived from cases in-
volving acts of Congress opening portions of Indian re-
servations to white settlement and the problem of whether
such actions were intended to diminish the reservations
by disestablishing the opened areas. See, ¢.g., Solem V.
Bartlett, 104 S.Ct. 1161 (1984); Rosebud Sioux Tribe v.
Kneip, 430 U.S. 584, 603 (1977) ; DeCouteau v. District
County Court, 420 U.S. 425, 442 (1975). In these “dis-
establishment” cases, the issue presented always involves
jurisdiction, not land ownership. The court below cor-
rectly understood that subsequent ratification is a form
of extinguishment of Indian title and rejected the fac-
tors proposed by the Counties. See 719 F.2d at 539.
“The question of whether title to Indian land has been
extinguished is separate from the question of disestab-
lishment.” IJdaho v. Andrus, 720 F.2d 1461, 1464 (9th
Cir. 1983). In short, the Counties rely for their ratifica-
tion test upon wholly inapposite cases.

it may be doing so. The Seneca Nation case, then, clearly was
wrongly decided, and stands as a monument to the mischief occa-
sioned by applying any standard short of Santa Fe’s “plain and am-
biguous” requirement.

In any event, the court in Seneca Nation expressly cautioned
that a claim that the transaction was inequitable might change its
reasoning. 173 Ct. Cl. at 915-16. The Oneidas make such a claim
in this case and Seneca Nation, therefore, is inapplicable.

23

The Counties’ argument also ignores the basic prin-
ciple that ambiguous Indian treaty or statutory language
must be construed in favor of the Indians.” In essence,
these petitioners assert that evidence of the “govern-
ment’s” intent to ratify an otherwise invalid treaty of
extinguishment can be gleaned from unconnected sources
without any clear showing that Congress itself intended
to ratify the questioned treaty. The standard proposed
by the Counties sweeps aside well-settled precedent to the
contrary, e.g., United States v. Santa Fe Pacific Railroad
Co., supra, and, more particularly, the unique trust rela-
tionship between the United States and Indian tribes.
See, e.g., Seminole Nation v. United States, 316 U.S. 286,
297 (1942). The danger of their proposal is made clear
when it is considered that the rule of statutory construc-
tion followed by the court below is but one aspect of the
broader principle that Indian title, whether by occupancy
or treaty, cannot be extinguished, diminished, abrogated,
or taken by subsequent repeal or ratification without a
showing of plain and unambiguous congressional intent
to do so. Menominee Tribe v. United States, 391 U.S.
404 (1968); United States v. Santa Fe Pacific Railroad
Co., supra,

The courts have applied the same essential standard
to all cases in which congressional action is argued to
have eliminated an Indian property right. The party dis-
puting the Indian property right must demonstrate that
Congress clearly intended to eliminate that right. In
Menominee Tribe v. United States, supra, for example,
the Court rejected an argument that Congress implicitly
repealed treaty hunting and fishing rights in passing the
Menominee Termination Act for the “intention to abro-
gate or modify a treaty is not to be lightly imputed to
the Congress.” Jd. at 413. Similarly, in Washington v.

1 See, e.g., Bryan Vv. Itasca County, 426 U.S. 3738, 392 ( 1976) ;
Menominee Tribe V. United Slates, 391 U.S. 404 (1968) ; Note, The
Canons of Indian Treaty and Statutory Construction: A Proposal
For Codification, 17 U. Mich. J.L. Ref. (1984).

24

Washington State Commercial Passenger Fishing Vessel
Association, 443 U.S. 658 (1979), the Court refused to
find that a United States-Canadian Convention dividing
salmon catches implicitly abrogated Indian treaty fish-
ing rights. “Absent explicit statutory language, we have
been extremely reluctant to find congressional abrogation
of treaty rights. . . .” Jd. at 690."°

The Counties and the State (see n.13, supra) fail to
meet the “plain and unambiguous” standard and, indeed,
to meet” even the Counties’ own vague test. No statutory
language or legislative history exists in this case which
shows congressional awareness of the 1795 treaty.” As

16 See also Antoine Vv. Washington, 420 U.S. 194, 206 (1974)
(ratifying legislation exempted Indian hunting rights from state
regulation, for it would be “impermissible in the absence of ex-
plicit congressional expression to construe the implementing Acts
as [preserving nothing that the Indians would not have had without
the legislation]”) ; Klamath Indian Tribe v. Oregon Dept. of Fish
and Wildlife, 729 F.2d 609 (9th Cir. 1984) (holding that Congress
did not clearly intend to abrogate hunting and fishing rights on
ceded land) ; Confederated Salish & Kootenai Tribes v. Namen, 665
F.2d 951, 955 (9th Cir. 1982) (holding that congressional intent to
terminate reservation status was not clearly shown) ; Plains Elec-
tric Generation and Transmission Cooperative, Inc. v. Pueblo of
Laguna, 542 F.2d 1875 (10th Cir. 1976) (preserving Indian lands
by finding that Congress clearly intended to repeal a statute per-
mitting condemnation of Pueblo lands without the consent of the
Pueblos or the Secretary of the Interior) ; New Mexico v. Aamodt,
587 F.2d 1102, 1111 (10th Cir. 1976) (“Any intent of Congress to
relinquish its jurisdiction and control over the lands and water
rights of the Pueblos must be express. It may not be implied from
a tortuous construction. ...”’).

17 The Counties insist that the phrases “in the last purchase from
them” in the 1798 Treaty and “other lands heretofore ceded” in the
1802 Treaty are “explicit evidence that the federal government
deemed [the 1795 transaction] effective to pass valid title.” Coun-
ties’ Br. at 43. Isolated metes and bounds phrases drafted by the
State of New York in the subsequent treaties, however, “indicate”
neither congressional awareness nor approval of the illegal 1795
transaction. The language in Congress’ ratification of the 1798 or
1802 Treaties makes no mention of the 1795 agreement or of the

a consequence of this flaw in their syllogism, petitioners
are forced to rest their argument on the “surrounding
circumstances.” Aside from being irrelevant to the issue
of extinguishment, these historical events are at most
ambiguous and essentially consistent with the finding of
the court below that Congress, in ratifying the 1798 and
1802 treaties, was unaware of the reference in the metes
and bounds descriptions to the void 1795 transaction.”

Stripped of its judicial facade, petitioners’ argument
is nothing more than an appeal to expediency. In es-
sence, their argument comes to this: Because some fed-
eral and state officials may have believed, through the
years, that the lands in question passed out of Indian
ownership, the State of New York should be allowed to
keep the benefit of its admittedly unlawful act. Peti-
tioners are asking the Court to abandon long-settled and
fundamental doctrines evolved fo: the protection of In-
dian property rights and to find “implicit” subsequent
ratification of a void treaty.

Congress has determined that the protection of Indian
property rights found in the Trade and Intercourse Act
still is necessary. This congressional decision should not
be undermined by the adoption of the Counties’ mis-

illegality of the agreement. As stated by this Court in Northwest-
ern Bands of Shoshone Indians v. United States, 324 U.S. 335, 351
(1945), “(t]he meaning of the word or phrase depends upon its use.
In these treaties it seems clearly to designate the boundaries .. .
but that falls short of acknowledgement . . . by the United States.”

‘®The Counties rely on several factors supposedly evidencing
congressional intent. The Counties refer to the attempts of federal
agents to prevent the 1795 treaty before it was made. The acts of
these agents in 1795 do not translate into congressional knowledge
in 1798 and 1802 that the metes and bounds descriptions in the
subsequent treaties referred to the 1795 transactions. The Counties
also argue that Congress would have sanctioned “nonsensically cir-
cumscribed tracts of land”, Counties’ Br. at 43, if the language in
the 1798 and 1802 treaties referred to the 1795 treaty calls. While
Congress may have thought the tracts abutted some earlier pur-
chase, this would not necessarily have been the 1795 transaction.

26

chievous and illogical “ratification” test. Approval of the
petitioners’ plea would be a shocking and unwarranted
departure from the basic principles of Indian law that
serve today as essential protection for Indian reservation

lands.
CONCLUSION

The basic thrust of petitioners’ argument is their bald
assertion that affirmance of the holding below will result
in social upheaval—the invalidation of titles to millions
of acres and, inter alia, the eviction of thousands of in-
nocent homeowners. The modest prayer of the Oneida
Nation in this case and the moderate settlements already
accepted by other eastern Indian tribes belie this wholly
unjustified charge. Moreover, should a tribe in the fu-
ture prove unreasonable in its demands, the courts can
tailor their equitable relief to modern reality and, of
course, Congress still claims the ultimate power of ratify-
ing today in plain and unambiguous language a land
transaction otherwise in violation of 25 U.S.C. § 177.

Past precedents of this Court and the manifest intent
of Congress are contrary to the petitioners’ position.
Their scare tactics in the face of such adversity are un-
warranted and inappropriate. The decision of the Court
of Appeals should be sustained.

Of Counsel:
B. KEVIN GOVER

July 16, 1984

27

Respectfully submitted,

ARTHUR LAZARUS, JR., P.C.
FRIED, FRANK, HARRIS, SHRIVER
& KAMPELMAN
(A Partnership Including
Professional Corporations)
600 New Hampshire Avenue, N.W.
Suite 1000
Washington, D.C. 20037
(202) 342-3500
Attorney of Record for Association
on American Indian Affairs, Inc.,
National Congress of American
Indians and Seneca Nation
of Indians

JERRY C. STRAUS
Hosss, Straus, DEAN & WILDER
1735 New York Avenue, N.W.
Sixth Floor
Washington, D.C. 20006
(202) 783-5100

Attorney of Record for Seminole
Tribe of Florida

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1327%3A18. Public record. Not legal advice.