Opposition Brief — City of Sherrill v. Oneida Indian Nation of NY

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FILED

| oH 4 JAN 20 2004

No. 03-855

ill ces

IN THE

Supreme Court of the Anited States

CITY OF SHERRILL, NEW YORK,

Petitioner,

ONEIDA INDIAN NATION OF NEW YorK, ef al.,

Respondents.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Second Circuit

RESPONDENTS’ BRIEF IN OPPOSITION

PETER D. CARMEN WILLIAM W. TAYLOR, III

MACKENZIE HUGHES LLP MICHAEL R. SMITH *

101 South Salina Street DAVID A. REISER

Suite 600 ZUCKERMAN SPAEDER LLP

Syracuse, New York 13221-4967 1201 Connecticut Avenue, N.W.

(315) 233-8386 Washington, D.C. 20036

(202) 778-1800

* Counsel of Record Cuunsel for Respondents

aa a LE TE a

WILSON-EPES PRINTING CO., INC. — (202) 789-0096 — WASHINGTON, D. C. 20001

PARTIES TO THE PROCEEDINGS BELOW

In addition to the parties listed on the cover of the

Petition, Madison County was the defendant in a parallel

action to enjoin its tax levies on Nation land, referred to as the

“Related Case” by the Second Circuit and by the District

Court. (Pet. App. A3, 64). The Second Circuit’s judgment

vacated the district court’s entry of judgment on the pleadings

against Madison County, and remanded for further

proceedings consistent with its opinion. (Id. at AS3).

TABLE OF conTants

PARTIES TO THE PROCEEDINGS BELOW. .................... i

TABLE OF AUTHORITIES .............:cccccccccsscsseseeeeseeseenseneenees Vv

A. Oneida I and Oneida II .........ccccccceceseesseeeseeseeeeenes l

B Federal Protection of Oneida Lands................... 3

C State Alienation of Oneida Lands..................006. 5

D. 1838 Treaty of Buffalo Creek.............:ccccccceeeees 6

E Toc ciieerersecccnsscccscscsscccccecees 8

F. Si insert ccserccanesstousccscesscccccsscsoeses 9

REASONS FOR DENYING THE PETITION ...............0000+ 11

A. Federal Laws and Treaties Protected

the Oneidas’ Land as a Reservation

Beginning in the 17808............ccccccceceseeeeeeeeees 12

B> The 1838 Treaty of Buffalo Creek Did

Not Disestablish the Oneida

C. . The Oneidas’ Lands Never Lost

Reservation Status Through A

Cessation of Tribal Existence..................c0c0000e 22

ITIIEIIITIII excnssncnsecoccnceccesensessesneseeceessencenecescsscecsocsoceoceeees 27

APPENDIX

Opinion, Attorney General William

Bradford’s with Letter of Transmittal

to the Secretary of War (June 16,

Message from the President of the

United States Transmitting the

Amended Treaty with the New York

Indians and Certain Documents

Relating hereto, Sen. Rep.

Confidential B, 26" Cong., 1" Sess

GOI UE ccnscesnctsremssnessonmsenmentesenitamenmanesis

To the Chiefs, Head men & warriors of

the Oneida Indians in New York [by

United States Commissioner Ransom

H. Gillet], (August 9, 1838)...............ccce.

Information In re the Oneida Indians,

Laid by the Attorney-General Before

the Supreme Court, At the Broome

Special Term, November 1907....................

United States’ Reply to the State of

New York’s Counterclaims, Oneida

Indian Nation v. State of New York,

No. 74-CV-187 (filed May 28, 2002).........

Response of the United States to the

Defendants’ First Set of

Interrogatories, Oneida Indian Nation

v. State of New York, No. 74-CV-187

(dated April 1, 2003) ........cccccsscsssscsssssceseeee

TABLE OF AUTHORITIES

CASES

Alaska v. Native Village of Venetie, 522 U.S. 520

GESITET cccnncnssanusnanengneaneianessnnnnmenesesnitiqanaatimeeniantsen 11, 12, 13

Blunk v. Arizona Dep't of Transp., 177 F.3d 879 (9"

GR Fie cecantonnneranssnnntensninenmneinesccstemenmmmncsennmmesionans 13

Boylan v. George, 117 N.Y.S. 573 (N.Y. App. Div.

siaedhiesanaciibaninanieaiiaonnamnisiinaiiusiininiil 8

Buzzard v. Oklahoma Tax Comm'n, 992 F.2d 1073 (10"

Bi acecenencsensesecesentstuscnencsmnmmnssssntinesinmetsnnneesennimnanen 13

Cass County v. Leech Lake Band, 524 U.S. 103 (1998) ......25

Cayuga Indian Nation v. Cuomo, 1999 WL 509442

BERDRLY.. Deltiy ©, CIGD ccenenessssnssctnessnetteennnnnnnen 12

County of Oneida v. Oneida Indian Nation, 470 U.S.

TB CAGE GION BBD ccccccccscscsccsasccsscsssssssensemsenmnessese passim

Donnelly v. United States, 228 U.S. 243 (1913) .......-ccccee0ee 13

Golden Hill Paugussett Tribe v. Weicker, 39 F.3d 51

(2d Cir. 1994) poeccecssocosoocosscesocssosoosoooncoosoooosoooooossoooces Becccces 23

Goodell v. Jackson, 20 Johns. 693 (N.Y. Sup. Ct. 1823)..... 19

HRI, Inc. v. EPA, 198 F.3d 1224 (10" Cir. 2000) ...........0000 19

Mashpee Tribe v. New Seabury Corp., 592 F.2d 575

(1st Cir. 1979)( Mashpee 1) .........ccscssseesereesseerseeeneenensenees 25

Mashpee Tribe v. Sec'y of the Interior, 820 F.2d 480

CEERI, CEG IO FD oececescscnccssnscssenemasensensnveenn 22, 23

Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973)......... l

Minnesota v. Mille Lacs Band of Chippewa Indians,

SEIT civiciinsininsnsteneidunabiennieimmianebinees 10, 20, 21

New York Indians, 72 U.S. 761 (1866)

nD See ecsinrensserircindennieiiatiniausaiiiieendamimnaiees 15, 16

New York Indians v. United States, 170 U.S. 1 (1898)

SO SE ND Bi ererecsrrnmscemactnesnemnsmasseennsenenniel passim

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

a TNE cicsiscnciastittinititaiantiaedaiiiitinniaeininminades 2,5

Oneida Indian Nation v. County of Oneida, 434 F .

CT passim

Oneida Indian Nation v. County of Oneida, 7\9 F.2d

FD GG FID crcccscccsesrsnseccenensenenssensnasenssssvcseneecenenneacanes 2

Oneida Indian Nation v. New York, 194 F. Supp.2d 104

STITUTE TIT rciisssetstatnenaneianininnasteniaitininsidaapiabaiandimpmeiunnnis 18

Solem v. Bartlett, 465 U.S. 463 (1984)...........ccccccceeeeees 22, 24

South Carolina v. Catawba Indian Tribe, 476 U.S. 498

Ee Ee ee ee ere 12, 24

United States v. Boylan, 265 F. 165 (2d Cir. 1920),

dismissed for want of jurisdiction, 257 U.S 614

SEED cccsessmnstemnsssenmmenmeennteedmenanmmncmnnmetied passim

United States v. Boylan, 256 F. 468 (N.D.N.Y. 1919) .. passim

I ee we;

vii

United States v. Candeleria, 271 U.S 432 (1926)................ 16

United States v. Celestine, 215 U.S. 278 (1909) ................. 24

United States v. Elm, 25 F. Cas. 1006 (N.D.N.Y. 1877)......25

United States v. Holliday, 70 U.S. 407 (1865) .............c00000 23

United States v. John, 437 U.S. 634 (1978) ............. 11, 24, 27

United States v. Minnesota, 270 U.S. 181 (1926)................. 15

United States v. New York Indians, 173 U.S. 464 (1899) ......8

United States v. Roberts, 185 F.3d 1125 (10" Cir. 1999) .... 19

United States v. Winans, 198 U.S. 371 (1905) .........:ccccceeees 18

Waterman v. Mayor, City of Oneida, 280 N.Y.S. 2d 927

LY. Bam, Cd. CBG FP ccnccccsnssssccsscsesssessnnsesssenspassscescenssessnene 26

Worcester v. Georgia, 31 U.S. 515 (1832).......ccccsseeeeeeees 18

STATUTES

LE Te ] |. een 10, 13, 14

pT ef | 19

I scciininisiiisisearnitininiiainieiial 2, 5, 16

FEDERAL TREATIES

Treaty with the New York Indians [Buffalo Creek],

F BaD, SED CD ccccsncsccsccsccscssessssscsssscssessnsssensssnseenest passim

Viii

Treaty with the Six Nations [Ft. Stanwix], 7 Stat. 15

STUITTID csosaihadestabeneeaetellindataitetaaineenasinainatiaiiiaciaitiaiiaeannia 3, 14

Treaty with the Six Nations [Ft. Harmar], 7 Stat. 33

TTI chcniticithinsahnneeioasiiinktinditieniiaes iittala ai 4,14

Treaty with the Six Nations [Canandaigua],

Fe, Gee cnseenesmmmnennmnmnmnnenenl passim

STATE TREATIES

Treaty with the Oneida Indians [Ft. Schuyler]

EU sctensnseeseneeempnetennnmmementsinntennetoieneeiel passim

REGULATIONS

44 Fed. Reg. 7325 (Jam. 31, 1979) .........sccsscsscsrsssrsesesesscenees 24

59 Fed. Reg. 9280 (Feb. 25, 1994)............:cscssarsssessesseeeeseees 24

68 Fed. Reg. 68180 (Dec. 5, 2003)............ccccsecseesteeeteeeneees 24

OTHER AUTHORITES

British and American Claims Arbitration Tribunal,

20 Am. J. Int'l Law 574, 590 (1926) .........cccccccccccesereeeeeees 18

Felix S. Cohen, Handbook of Federal Indian Law

TIE rcciicnniesetnnetensmmmsniiiunngentinnitisienisbantenssiltiiniieenanis 27

Felix Cohen's Handbook of Federal Indian Law

(Rennard Strickland ed., 1982)..............cccccccceseeeeeeeeees 13, 16

H.R. Rep., No. 781, 103d Cong., 2d Sess. (1994),

reprinted in 1994 U.S.C.C.A.N. 3768 ........ccccccccseeseeeeeees 24

25 J. Cont'l Congress, 681 (Oct. 15, 1783)... cece 3,14

N.Y. Assembly, Report of the Special Committee to

Investigate the Indian Problem of the State of N.Y.

aR. 1, UBBD) .crrcccccsccscerecrerecevececoscssvscscssesnnssesnsnssssssssesees 19

Sen. Exec. J. 130-31 (June 11, 1838) ........cccccccsesseeeeeeeeeeeennees 7

————oorrrrRk,_sESe_

pT ee —- on

STATEMENT

In 1985, the Court decided that federal law protects

the right of the Oneida Indian Nation of New York to possess

reservation lands previously alienated by the State of New

York without the consent of the federal government. County

of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985)

(Oneida II). In 1997 and 1998, the Oneida Indian Nation of

New York, through voluntary market transactions, reacquired

possession of a small amount of such land in the City of

Sherrill. Despite the rule forbidding state and local taxation

of Indian reservation land, Mescalero Apache Tribe v. Jones,

411 U.S. 145, 148 (1973), Sherrill levied property taxes on

the Oneidas. When the Oneidas did not pay the taxes, Sherrill

took title to the Oneidas’ land through a foreclosure and

threatened to evict the Oneidas. The Oneidas sought the

protection of the United States District Court for the Northern

District of New York, which enjoined Sherrill’s taxation of

the Oneidas’ land. The Second Circuit affirmed, holding that

the Oneidas’ land is reservation land protected by federal law

from state and local taxation. The Second Circuit's decision

is not in conflict with any decision of this Court or of any

Circuit. It is a correct application of the particular principles

regarding the Oneidas’ continuing rights that were settled in

Oneida I]. The United States, which has intervened in the

pending Oneida land claim litigation, agrees that the Oneidas’

land remains a reservation protected by federal treaties and

denies that the reservation was disestablished. (Resp. App.

25a-4 1a).

A. Oneida I and Oneida II

In 1970, the Oneidas filed a test case against Madison

County and Oneida County (in which Sherrill is located).

The Oneidas asserted a federal common law claim for

trespass on certain Oneida reservation land. The Oneidas

alleged that New York had caused the alienation of that land

in violation of federal law, that some of the land was then in

the Counties’ possession, that the Oneidas retained federally-

protected possessory rights and that the Counties were

trespassers liable for rental damages for 1968 and 1969.

In Oneida Indian Nation v. County of Oneida, 414

U.S. 661, 674 (1974) (Oneida I), this Court reversed a

dismissal for lack of subject matter jurisdiction. The Court

held that the Oneidas could assert a federal common law

claim for relief from the Counties’ current trespasses. The

Court explained that federal treaties with the Oneidas, the

Constitution’s commitment of Indian relations to the federal

government and the Nonintercourse Act, 25 U.S.C. § 177, all

protect the Oneidas’ Indian title, a right of occupancy that can

be extinguished only by the federal government. 414 US. at

667-74; see also Oneida II, 470 U.S. at 235-36 (referring to

Indian title also as “aboriginal rights” and “possessory

rights”).

On remand, the district court conducted a trial and

entered judgment requiring the Counties to pay trespass

damages for 1968 and 1969. Oneida Indian Nation v. County

of Oneida, 434 F. Supp. 527 (N.D.N.Y. 1977). The court

found that the Oneida Indian Nation of New York is “the

direct descendant{]” of the Oneida Indian Nation and is a tribe

retaining its federally-protected rights in land. Id. at 538.

The Second Circuit affirmed. Oneida Indian Nation v.

County of Oneida, 719 F.2d 525, 539 (2d Cir. 1983).

In Oneida II, this Court affirmed in all relevant

respects. The Court granted review because of “the

importance of the Court of Appeals’ decision not only for the

Oneidas, but potentially for many eastern Indian land claims.”

470 U.S. at 230. The Court observed that the Oneida Indian

Nation of New York is “the direct descendant[]” of the

Oneida Indian Nation and held that the Oneidas’ possessory

rights persist in land alienated without the requisite federal

approval. 470 U.S. at 230-34. The Court acknowledged “the

potential consequences of its decision.” 470 U.S. at 253.

In the wake of Oneida II, final judgment awarding

trespass damages was entered in the test case. Litigation

remains pending regarding the rest of the Oneida land that

New York caused to be illegally alienated. Oneida Indian

Nation v. State of New York, No. 74-CV-187 (N.D.N.Y.).

The United States has intervened as plaintiff to sue New York

for all damages owed to the Oneidas. In its reply to New

York’s counterclaim for a declaration that the Oneidas’

reservation was disestablished, “the- United States takes the

position that the reservation has not been

disestablished. * * * No federal statute or treaty disestablished

or diminished the boundaries of the Oneida Reservation as

acknowledged by the 1794 Treaty of Canandaigua and by

other federal treaties.” (Resp. App. 26a).

B. Federal Protection of Oneida Lands

Because the Oneidas fought beside the United States

in the American Revolution, Oneida II, 470 U.S. at 231,

Congress passed a resolution in 1783 “to reassure [the

Oneidas] of the friendship of the United States and that they

may rely on that the lands which they claim as their

inheritance will be reserved for their sole use and benefit until -

they may think it for their own advantage to dispose of the

same.” 25 J. Cont’l. Cong. 681, 687 (Oct. 15, 1783).

In 1784, when the Oneidas occupied about six million

acres of land, Oneida II, 470 U.S. at 230, the United States

made a treaty that “secured [the Oneidas] in the possession of

the lands on which they are settled.” Treaty with the Six

Nations [Ft. Stanwix], Art. II, 7 Stat. 15 (Oct. 22, 1784);

Oneida II, 470 U.S. at 231.

In 1785 and 1788, New York purchased more than _

five million acres of the Oneidas’ lands. “The Oneidas

retained a reservation of about 300,000 acres” in the 1788

state treaty, Oneida II, 470 U.S. at 231, to “hold to themselves

and their posterity forever for their own use and cultivation”

(Pet. App. A137). The 1788 state treaty described the

boundaries of the Oneida reservation, Treaty with the Oneida

Indians [Ft. Schuyler], (Pet. App. A136-38), which include

the land at issue in this case.

In 1789, the United States confirmed the Oneidas in

the possession of their lands — the 300,000 acres reserved in

1788. Treaty with the Six Nations [Ft. Harmar], Art. 3, 7

Stat. 33 (Jan. 9, 1789); 470 U.S. at 231 & n.1.

In 1794, the United States entered the Treaty with the

Six Nations [Canandaigua], 7 Stat. 44 (Nov. 11, 1794); Pet.

App. A141-46; Oneida II, 470 U.S. at 231. It protects the

Oneidas’ “reservation” and “property:”

The United States acknowledge the lands reserved

to the Oneida, Onondaga and Cayuga Nations, in

their respective treaties with the state of New-

York, and called their reservations, to be their

property; and the United States will never claim

the same nor disturb them * * * in the free use and

enjoyment thereof: but the said reservations shall

remain theirs, until they choose to sell the same to

the people of the United States, who have the

right to purchase.

(Pet. App. A141). Articles VI and VII also provided for a

superintendent to resolve disputes and to provide an annuity,

(id. at A143-44), which the United States continues to deliver

to the Oneida Indian Nation of New York. (CA JA 1506-18).

In addition to treaty protection of the Oneidas’ lands,

the First Congress enacted the Nonintercourse Act in 1790,

forbidding purchases of Indian land “except where such

conveyances were entered pursuant to the treaty power of the

United States.” Oneida II, 470 U.S. at 231-32 & n2.

Congress enacted a “stronger, more detailed version of the

Act” in 1793 and reenacted substantially identical legislation

in 1796, 1799, 1802 and 1834. Oneida II, 470 U.S. at 232 &

245-46; see Oneida I, 414 U.S. at 668 n.4. Every version of

the Act has provided for the appointment of federal

commissioners to superintend transactions in land covered by

the Act. See 25 U.S.C. § 177 (current version).

OF State Alienation of Oneida Lands

“Despite Congress’ clear policy that no person or

entity should purchase Indian land without the acquiescence

of the federal government, in 1795 the State of New York

began negotiations to buy the remainder of the Oneidas’

land.” Oneida II, 470 U.S. at 232. No one argues that any

alienation of the Oneidas’ reserved land complied with any of

the requirements of the Nonintercourse Act, except perhaps

sales in 1798 and 1802 involving a federal commissioner.

470 U.S. at 246-47 & nn.19-20 (discussing validity of 1798

and 1802 treaties); Oneida Indian Nation v. County of

Oneida, 434 F. Supp. at 535 (N.D.N.Y. 1977) (from 1795 to

1846, only two sales involved federal commissioners).

The City of Sherrill does not claim that the alienation

of the lands at issue here complied with the Nonintercourse

Act. In 1805, New York, without federal approval, concluded

a treaty that provided for the division of Oneida lands. Then,

in 1807, New York (again without federal approval) enacted a

law giving one Oneida member a fee patent, enabling him to

sell to a non-Indian land speculator. (CA JA 407-15).

D. 1838 Treaty of Buffalo Creek

In 1838, a United States Commissioner negotiated the

Treaty of Buffalo Creek with “the New York Indians,” which

included the Oneidas and several other tribes. Treaty with the

New York Indians [Buffalo Creek], 7 Stat. 550 (1838) (Pet.

App. A147-78). At the time, the Oneidas had possession of

about 5,000 acres of land. (Pet. App. Al13). The lands in

Sherrill, like most of the Oneidas’ lands, had been transferred

from Oneida possession more than three decades earlier. The

Treaty of Buffalo Creek did not refer to any of the prior

transfers of Oneida land.

Article 1 of the treaty ceded to the United States most

of the land the New York Indians previously had acquired in

Wisconsin with the federal government’s assistance. (Pet.

App. A149). Article 2 set apart land in Kansas as a

permanent home for the New York Indians “[in]

consideration of [the] cession and relinquishment” of

Wisconsin land in Article 1. (Jd.); New York Indians v.

United States, 170 U.S. 1, 19 (1898) (New York Indians II).

Article 3 provided for the forfeiture of the Kansas land of

such tribes “as do not accept or agree to remove” there

“within five years or such other time as the President may,

from time to time, appoint.” (Jd. at A150). As to New York

land, the treaty ceded Seneca land described in Article 10 (id.

at A153-54) and Tuscarora land described in Article 14. (Jd.

at A155-56). The treaty did not forfeit or cede Oneida land in

New York. Article 13 conditioned the Oneidas’ removal on a

future agreement to sell land to New York. They “agree to

remove to their new homes in the Indian territory as soon as

they can make satisfactory arrangements with the Governor of

the State of New York for the purchase of their lands at

Oneida.” (Jd. at A155).

The Senate amended the. treaty and instructed the

federal treaty commissioner to return to each of the signatory

ion

tribes to gain assent to the altered treaty after “fully and fairly

explaining” it. New York Indians IJ, 170 U.S. at 21; Sen.

Exec. J. 130-31 (June 11, 1838). Commissioner Ransom

Gillet then met with the Oneidas on August 9, 1838 (Pet.

App. A173) (treaty recites that Gillet “fully and fairly”

explained it to the Oneidas). To dispel the Oneidas’ fears that

“they might be compelled to remove, even without selling

their land to the State,” S. Rep. Confidential B, 26" Cong., 1"

Sess. 29-30 (1840) (Resp. App. 5a-9a), Gillet provided the

Oneidas with a formally attested writing that later went to the

Senate with the treaty. :

In order to prevent all mistakes and to counteract

all misapprehensions concerning the purport of

the treaty * * * with amendments that have been

this day assented to by * * * the Oneidas at

Oneida Castle[,] I hereby most solemnly assure

them that the treaty does not and is not intended to

compel the Oneidas to remove from their

reservation in the State of New York to the west of

the State of Missouri or elsewhere unless they

shall hereafter voluntarily sell their lands where

they reside & agree to do so. They can if they

choose to do so remain where they are forever.

When they wish to remove they can sell their

lands to the Governor of the State of New York &

then emigrate. But they will not be compelled to

remove.

(Resp. App. 10a) (emphasis added). The Oneidas assented to

the treaty as explained (Pet. App. A173-174), and the Senate

approved the treaty by a majority vote only. (CA JA 1579).

President van Buren nevertheless proclaimed the amended

treaty. (CA JA 1582).

The President never specified a deadline or “made a

formal tender of performance” of the promise to assist the

New York Indians in moving to Kansas, and Congress never

appropriated the promised funds to pay for removal. New

York Indians Il, 170 U.S. at 28-29. The United States

discouraged an attempt by some New York Indians to

remove. (CA JA 1343). A federal commissioner also assured

the New York Indians in 1846 that they did not have to

remove. (CA JA 1327). By 1859, the United States restored

the Kansas land to the public domain, making removal -

impossible. New York Indians II, 170 U.S. at 31 & n.17. The

New York Indians later recovered for the failure of the

Kansas-Wisconsin exchange. United States v. New York

Indians, 173 U.S. 464 (1899).

E. Boylan Litigation

In 1906, after foreclosure on a mortgage, an action to

partition thirty-two acres of the remaining Oneida land and to

evict the Oneidas commenced in state court. United States v.

Boylan, 256 F. 468, 473-74 (N.D.N.Y. 1919). New York

weighed in on the side of the Oneidas. The Attorney General

reported to the court, at the request of Governor Charles

Evans Hughes, that the Oneidas remained in possession of the

land and that “[t]he present generation constitute, in fact, a

band, with chiefs or head men, who speak for them, and claim

tribal rights.” (Resp. App. 15a). The Attorney General

further reported that, “[njo tax has ever been laid on the

thirty-two acres of land under any state authority. No record

has been found of any authority for an entry to be made upon

this land, in hostility to the Indian possession. The Attorney-

General has been unable to discover that there is anyone who

disputes the matter above referred to, by way of facts.” (Jd. at

16a). Having received this report, the court ruled for the

Oneidas, but an appellate court reversed on procedural

grounds and ordered a partition, with the result that the

Sheriff forcibly evicted the Oneidas. Boylan v. George, 117

N.Y.S. 573 (N.Y. App. Div.); see United States v. Boylan,

256 F. at 475-76.

)

In 1915, the United States filed suit as trustee for the

Oneidas, seeking recovery of the Oneidas’ land. The United

States asserted that the Oneidas remained “dependents and

wards of the United States” entitled to possession of their

land. (Complaint, reproduced in Appendix, Boylan v. United

States, at 4a, No. 458 (O.T. 1920)). The district court heard

testimony concerning the tribal status of the Oneidas and their

rights in Oneida land. (/d. at 13a- 63). The court held that

“the Oneida reservation still existed,” that the Oneidas’ Indian

title in the thirty-two acres had not been eliminated and that

such lands were held by that title and “were not lands

conveyed to them, or set apart for them, by the state of New

York from its own possessions.” 256 F. at 481. The court

further held that the Oneidas continued their tribal existence

and that they must be restored to possession. 256 F. at 494-

96.

The Second Circuit affirmed, holding that the “Indians

of the tribe of the Oneidas still maintain and occupy toward

each other the relation of guardian and ward” and that the

State of New York could not “extinguish the right of

occupancy which belongs to the Indians.” United States v.

Boylan, 265 F. 165, 174 (2d Cir. 1920), dismissed for want of

jurisdiction, 257 U.S. 614 (1921) (untimely appeal). The

Oneidas then regained possession of the land, which they

retain today. (Pet. App. A43).

F. Proceedings Below

The Oneidas reestablished possession of the land at

issue here through voluntary market transactions in 1997 and

1998. After Sherrill foreclosed for non-payment of property

taxes and threatened eviction, (CA JA 36-37), the Oneidas

filed suit in federal court. The court entered judgment in

favor of the Oneidas, enjoining Sherrill’s property tax

enforcement. (Pet. App. A61-133).

The Second Circuit affirmed. (Pet. App. Al-60). The

court concluded that the Oneida land was part of the

reservation protected in the federal Treaty of Canandaigua

and is therefore Indian country under 18 U.S.C. § 1151. (dd.

at A24-25 & n.13). The court held that the reservation land

was a “carve-out” from the cession in the 1788 state Treaty of

Ft. Schuyler “represent{ing) that portion of the Indian’s

aboriginal homeland that had not been conveyed to New York

and thus never became state land.” (/d. at n.13). The court

further held that the 1794 federal Treaty of Canandaigua set

aside the land for the Oneidas, that the Oneidas retained a

tribal right of possession never extinguished by the United

States and that, with reacquisition of the land, the Oneidas

continue to hold it by that right of possession. (/d. at A23-

28).

The Second Circuit also held that the Oneida

reservation in New York was not disestablished by the Treaty

of Buffalo Creek (id. at A33-41), concluding that there was

not “substantial and compelling” evidence of an intent to

disestablish. (Jd. at A34). The court explained that the treaty

did not effect or require any cession of Oneida land in New

York. As to the Oneidas, “removal was conditioned on

speculative future arrangements between the Indians and a

third party.” (/d at A35). The court noted that Article 3

contemplated that some of the New York tribes might not

accept land in Kansas, for which they would forfeit the

interest in Kansas land, not New York land. (/d. at A36).

The court also recognized that Commissioner Ransom

Gillet’s unequivocal assurance to the Oneidas that the treaty

¢ 1 not mandate removal from New York was relevant to the

Oneidas’ understanding of the treaty. /d. at A35-36 & n.18

(citing Minnesota v. Mille Lacs Band of Chippewa Indians,

$26 U.S. 172, 196 (1999)). The court further explained that

the damage award received by the Oneidas for the

government’s breach of its promise to exchange Kansas land

for land in Wisconsin (New York Indians II, 170 U.S. at 2),

did not imply disestablishment of the New York reservation.

(Id. at A40). The Second Circuit observed that the dispersal

of many New York Oneidas could not show a

disestablishment by the 1838 treaty because most of the

dispersal was due to illegal state transactions occurring long

before the Treaty of Buffalo Creek. (Jd. at A39-40).

Finally, the Second Circuit rejected Sherrill’s claim

that the entire reservation was stripped of Indian country

status by a lapse in tribal continuity. The court noted that this

Court recognized the Indian country status of Choctaw land

even though the tribe was “merely a remnant of a larger group

of Indians, long ago removed * * * [and] federal supervision

over them had not been continuous.” (Pet. App. A42)

(quoting United States v. John, 437 U.S. 634, 653 (1978)).

Alternatively, the court concluded that the record showed

continuous tribal existence. (Pet. App. A43-44).

REASONS FOR DENYING THE PETITION

The Second Circuit’s decision does not conflict with a

decision of this Court or of any Circuit. To the contrary, the

Second Circuit’s decision accords with Oneida II, which

established that the Constitution, federal statutes and federal

treaties protected the Oneidas and their reservation and that

the United States never terminated that protection. Although

Sherrill alleges a conflict with Alaska v. Native Village of

Venetie, 522 U.S. 520 (1998), that case concerned a question

completely irrelevant here — whether a statutorily terminated

reservation could become Indian country. The Second Circuit

correctly explained and applied the Venetie decision, as well

as the other Circuit decisions mentioned by Sherrill regarding

tribal continuity. (Pet. App. A23-25, A42-45).

Sherrill really is not challenging the legal principles

applied by the Second Circuit, but the result, which is the

logical consequence of Oneida II. In Oneida II, the Court

specifically observed that its decision had important

consequences. 470 U.S. at 253. One is that the federally-

protected possessory rights entitling the Oneidas to trespass

damages when the Oneidas do not have possession of their

lands also entitle the Oneidas to federal protection against

state and local taxation of tribal lands in Oneida possession.

Local governments liable to the Oneidas as trespassers on

Oneida land cannot reasonably claim the right to tax the land

when it is in the hands of the Oneidas.

The Second Circuit’s decision approves the least

disruptive way to give meaning to rights recognized in

Oneida II. The rationale for denying ejectment as a remedy -

has been that monetary damages are an adequate remedy to

provide a “homeland” through future purchases. Cayuga

Indian Nation v. Cuomo, 1999 WL 509442, at 23-24

(N.D.N.Y. July 1, 1999), appeal pending, No. 01-7795 (2d

Cir.); cf. Oneida Il, 470 US. at 253 n.27 (equitable

considerations may limit relief for trespass on tribal

possessory right); South Carolina v. Catawba Indian Tribe,

476 U.S. 498, 518 n.5 (1986) (Blackmun, J., dissenting,

joined by Marshall and O’Connor, JJ.) (right to be restored to

immediate possession may be limited by equitable

considerations). If the Oneidas retain tribal possessory rights

but may not enjoy them after acquiring possession of land in

market transactions, then ejectment would be the only land

claim remedy that could effectuate the Oneidas’ rights.

A. Federal Laws and Treaties Protected the

Oneidas’ Land as a Reservation Beginning

in the 1780s.

Contending that a 1788 state treaty precluded federal

protection of the Oneidas’ land, Sherrill relies on Alaska v.

Native Village of Venetie, to argue that the Oneidas’ land was

not within a federal Indian reservation when it was alienated

in 1805-07.

Venetie says nothing to undermine the Indian country

status of Oneida land. In Venetie, the Court addressed the

status of land within a reservation that had been explicitly

disestablished by federal statute, holding that Indian country

status could not be revived by tribal purchase of lands within

the former reservation. The Native Village of Venetie did not

— in the face of express statutory termination — even claim

“reservation” protection under 18 U.S.C. § 1151(a), arguing

instead that its presence made the land a “dependent Indian

community” under 18 U.S.C. § 1151(b).t The Court rejected

_ the argument as inconsistent with the statute disestablishing

the reservation. This case involves no such facts or legal

issue. Congress never terminated the Oneida reservation.*

The Oneidas’ land fits the statutory definition of

Indian country, which includes “all land within the limits of

any Indian reservation under the jurisdiction of the United

States Government.” 18 U.S.C. § 1151(a); see Donnelly v.

United States, 228 U.S. 243 (1913); Felix Cohen’s Handbook

of Federal Indian Law, 34-35 (Rennard Strickland ed., 1982)

(discussing various forms of Indian reservations). The

Oneida reservation was acknowledged by a Congressional

resolution and by three federal treaties. 25 J. Cont. Cong.

1 Section 1151 classifies as Indian country “(a) all land

within the limits of any Indian reservation under the jurisdiction of

the United States Government * * * (b) all dependent Indian

communities * * * and (c) all Indian allotments, the titles to which

have not been extinguished, including rights-of-way running

through the same.” The statute is reproduced at Pet. App. A179.

2gherrill refers to Blunk v. Arizona Dep't of Transp., \77

F.3d 879 (9" Cir. 1999), and Buzzard v. Oklahoma Tax Comm'n,

992 F.2d 1073 (10 Cir. 1993), (Pet. 17), but does not actually say

they create a Circuit split, which they do not. Neither decision

involved land within a federally-protected rese: vation.

681, 687 (Oct. 15, 1783) (Oneida lands “reserved for their

sole use and benefit”); Treaty with the Six Nations [Ft.

Stanwix], 7 Stat. 15 (Oct. 22, 1784) (Oneidas “secured in the

possession of the lands on which they are settled”); Treaty

with the Six Nations [Ft. Harmar], 7 Stat. 33 (Jan. 9, 1789)

(Oneidas “are also again secured and confirmed in the

possession of their . . . lands”); Treaty with the Six Nations

[Canandaigua], 7 Stat. 44 (Nov. 11, 1794) (acknowledging

“what lands belong to the Oneidas” and assuring their “free

use and enjoyment” as their “reservation[]” and “property”.

Sherrill now argues that the federal government was

powerless to recognize Oneida land as Indian country, citing a

state treaty, the 1788 Treaty of Ft. Schuyler. Sherrill claims it

extinguished the Oneidas’ title and left nothing subject to the

protection of federal law. Sherrill’s argument is a sharp

detour from the central argument it made below, which was

that Venetie requires a fresh federal set aside of land after the

Oneidas regain actual possession. Moreover, Sherrill first

cited the 1788 treaty ir a post-argument letter to the Second

Circuit, which undermines claims that the treaty clearly

extinguishes the Oneidas’ rights. If that were clear, the 1788

treaty argument would not have been added as an

afterthought. The treaty was not obscure. This Court referred

to it in Oneida IJ, 470 U.S. at 231.

Federa! law would protect Oneida land, which is a

reservation under 18 U.S.C. § 1151 even if Sherrill were

correct that the 1788 state treaty created an Oneida

reservation. No matter whai New York did in 1788, the

United States asserted its jurisdiction over the Oneidas’ lands

and protected them as the Oneida reservation. Following

three assertions of such jurisdiction and protection in the 1783

Congressional resolution, the 1784 Treaty of Ft. Stanwix and

the 1789 Treaty of Ft. Harmar, the 1794 Treaty of

Canandaigua explicitly acknowledged and protected the lands

reserved in the 1788 treaty. That protection was not less than

the protection given in the same treaty to the Senecas’ land, a

protection recognized in New York Indians, 72 U.S. 761

(1866) (New York Indians I), to prohibit state property taxes.

The County amici (Br. at 11) claim that the Treaty of

Canandaigua should not be read to protect Oneida land in deference

to state property rights assertedly created in the 1788 state treaty,

citing United States v. Minnesota, 270 U.S. 181 (1926). That case

involved the effect of a later Indian treaty on state land, requiring a

clear statement before the Indian treaty would be construed to take

state property. There is no state property interest at issue here.

Under the Constitution, a state did not have a property right to tax

land occupied by an Indian tribe, and New York never claimed

such a right. See N.Y. Indian Law § 6. Nor did it have any

authority to govern or regulate an Indian tribe, which the

Constitution made an exclusively federal power. Oneida II, 470

U.S. at 234 (“With the adoption of the Constitution, Indian

relations became the exclusive province of federal law.”)

Construing the Treaty of Canandaigua to prohibit state taxation of

Oneida land does not affect a state property interest in the reserved

land, if there was one. For the same reason, it is irrelevant that

Attorney General Wirt concluded that the Treaty of Canandaigua

did not “divest[]” New York of its title to “any of the lands then

occupied by the Six Nations,” in an 1819 opinion dealing with sales

of timber on Seneca land. Minnesota also has absolutely no

bearing on whether the 1788 state treaty should be construed to

reserve land to the Oneidas or cede it with a grant of occupancy

back to the Oneidas. Minnesota concerns the effect of a federal

treaty on state property rights, not the effect of a state treaty on the

rights of an Indian tribe.

The County amici also raise arguments about the

Nonintercourse Act and the Tenth Amendment that were not raised

or decided below and are not fairly included in the questions

presented. (County Br. 14-20). Those arguments are without merit

and should be disregarded.

Sherrill acknowledges that New York Indians |

recognized the tax immunity of Seneca land referred to in the

Treaty of Canandaigua. (Pet. 16). Sherrill therefore contends

that Article II of the treaty offered less protection to Oneida

land than Article III offered to Seneca land. Sherrill offers no

reason to think that the treaty was meant to give less

protection to the Oneidas’ lands, which already were

protected by two prior federal treaties. Article II and Article

III both use the term “acknowledge” to refer to the “property”

of the Oneidas and the Senecas. Article IV then confirms the

equivalence of federal protection of Oneida and Seneca land,

saying that “[t}he United States ha[d] thus described and

acknowledged what lands belong to the Oneidas * * * and

Senekas.” (Pet. App. A141-43).

P State protection does not preclude federal protection.

Even reservations established by sovereigns other than the

United States come under the protection of federal law once

the reservation is part of the United States. United States v.

Candeleria, 271 U.S 432, 442 (1926) (United States could sue

to challenge alienation of Pueblo Indian land previously set

aside under Mexican law and held in fee simple by tribe);

Felix Cohen’s Handbook of Federal Indian Law, 34-35 n.66

(1982 ed.) (term “reservation” describes “federally-protected

Indian tribal lands without any particular dependence on

source”’).

No matter how one characterizes “title” under the

1788 treaty, the treaty guarantees that the Oneidas “shall hold

to themselves and their posterity forever for their own use and

cultivation,” the lands referred to as reserved. (Pet. App.

A137). That interest always has been protected from

alienation by the Nonintercourse Act. 25 U.S.C. § 177

(prohibiting conveyance “of lands, or of any title or claim

thereto from any Indian nation”). Thus, in 1795, Secretary of

War Timothy Pickering sent to the New York Governor the

opinion of Attorney General William Bradford stating that

lands held by the Oneidas after the 1788 state treaty were

restricted by federal law and that New York could not cause

their alienation except “by a treaty holden under the authority

of the United States, and in the manner prescribed by the laws

of Congress.” (Resp. App. la-4a). The United States also

asserted its jurisdiction when it sued in Boylan, 256 F. at 477

(“the United States does contend that it had jurisdiction over

these Indians”), and in the current land claim litigation, (Resp.

App. 31a).4

In any event, Sherrill’s premise regarding the meaning

of the 1788 state treaty is incorrect. The Second Circuit

correctly held that the Oneidas reserved title to the reservation

and were not simply given state land to live on. (Pet. App.

A24). In Oneida II, the Court observed that, through the 1788

treaty, the State “purchased the vast majority of the Oneidas’

land. The Oneidas retained a reservation of about 300,000

acres.” 4700U.S. at 231. The court then held that the

Oneidas’ reserved Indian title remains intact and subject to

the continuing protection of federal law. Thus, Sherrill’s

interpretation of the 1788 treaty and its effect on the Oneidas’

federal rights is at odds with this Court’s decision in

Oneida II.

The Second Circuit’s reading of the 1788 treaty is

fully consistent with, indeed compelled by, United States v.

‘Sherrill asserts that the Oneidas’ land today is “free from

any and all federal government restrictions.” (Pet. 17). The point

makes no sense in light of Oneida II, which held that the Oneidas

retained federally-protected rights in their lands in 1968 and 1969

and affirmed a judgment awarding trespass damages for those

years. If the Oneidas had possession in 1968 and 1969 of the lands

at issue in Oneida II, then the same principles of federal law that

protected the Oneidas’ title and made the Counties trespassers

would have restricted alienation of the land without federal consent.

Winans, 198 U.S. 371, 381 (1905) (tribal fishing rights were

reserved, not granted, in treaty that “ceded” “all right, title

and interest in and to the lands” and then “secured” fishing

rights), and Worcester v. Georgia, 31 U.S. 515, 552-53

(1832) (treaty must be read to concern the “dividing line”

between tribal lands and ceded lands, such that treaty term

“allotting” land to tribe did not grant the land, which must be

understood as reserved by tribe); id. at 582 (M’Lean, J.,

concurring), see Oneida Indian Nation v. New York, 194 F.

Supp.2d 104, 140 (N.D.N.Y. 2002) (“simply makes no sense”

to read 1788 treaty as ceding reserved lands); Boylan, 256 F

at 481 (Oneida lands “not lands conveyed to them, or set apart

for them, by the state of New York from its own

possessions”).*

The Second Circuit’s reading is also consistent with

New York’s own understanding. There is no evidence that

New York ever objected to the making of the Treaty of

Canandaigua or to its guarantee that the Oneida reservation

was the Oneidas’ “property.” When the State later sought to —

subdivide the Oneidas’ land after 1843, it called the

‘The County amici refer (Br. at 10) to arbitrators’

interpretation of a similar Cayuga treaty. British and American

Claims Arbitration Tribunal, 20 Am. J. Int’! Law 574, 590 (1926).

The arbitrators decided that the Cayugas did not reserve land but

that New York set up a Cayuga reservation after Cayuga cession.

The arbitrators explained that treaties are interpreted as

unsophisticated Indians understand them and thus that the literal

meaning of the cession language should be given effect. This is

inconsistent with the decisions in Winans and Worcester, which

found tribal understanding regarding reservation in the context and

function, not the literal words, of treaties drafted by non-Indians.

Further, the premise of the arbitrators’ decision is undermined by

Oneida II, in that the arbitrators decided that state law controlled

sale of tribal land after the Constitution.

remaining Oneida land “the residue of the said reservation not

now nor heretofore ceded to the people of the said state.”

United States v. Boylan, 265 F. 165, 168 (2d Cir. 1920)

(quoting 1842 state treaty) (emphasis added); see New York

Assembly, Report of Special Committee to Investigate the

Indian Problem of the State of New York, at 8 (Feb. 1, 1889)

(“In 1788, September 12, the Oneidas by treaty ceded to the

State all their lands excepting certain reservations in Oneida

and Madison counties.”). The references of the County amici

(Br. at 9-10) to Chancellor Kent’s decision in Goodell v.

Jackson, 20 Johns. 693, 729 (N.Y. Sup. Ct. 1823), do not

undermine New York’s understanding of the 1788 treaty, as

there was no issue before the court in that litigation

conceming the Oneidas’ tribal rights in their reservation

land.

$Sherrill also suggests absence of federal superintendence.

(Pet. 16-19). The 1794 Treaty of Canandaigua provided for a

federal superintendent. Federal superintendence also flows from

the treaty promises of the United States to protect Oneida lands. It

is evident in the actions of the United States on the Oneidas’ behalf

in Boylan and in the pending Oneida land claim litigation. Sherrill

recognized federal superintendence when it asked for 25 U.S.C. §

81 approval of a utility easement on the Oneidas’ land in Sherrill.

(CA JA 460-63 & 1527). Nothing in the Second Circuit’s opinion

concerning federal superintendence is in conflict with United States

v. Roberts, 185 F.3d 1125 (10" Cir. 1999), or HRI, Inc. v. EPA, 198

F.3d 1224 (10 Cir. 2000), which addressed only the existence of

an “informal reservation” in the absence of a treaty.

B. The 1838 Treaty of Buffalo Creek Did Not

Disestablish the Oneida Reservation.

Sherrill asserts that Treaty of Buffalo Creek clearly

disestablished the Oneida reservation. That clarity escaped

Sherrill when it moved for summary judgment in the district

court, writing then that “Congress itself was not responsible

for revoking OIN’s alleged reservation.” (CA JA 284).

Sherrill proposes that the Treaty of Buffalo Creek

should be interpreted to be an “obligatory removal” treaty

(Pet. 6), which, although it does not refer to the land at issue

here, must be read to strip the Oneidas of their rights in that

land. The assurances of the United States to the Oneidas,

however, demonstrate conclusively that the treaty did not

require Oneida removal from New York, and that same

conclusion also is compelled by the terms of the treaty.

The Oneidas assented after Commissioner Ransom

Gillet explained the treaty’s meaning in a formally attested

document, and that explanation accompanied the treaty when

it was submitted to the Senate. (Pet. App. A35-36 n.18).

Gillet wrote: “[T]he treaty does not and is not intended to

compel the Oneidas to remove from their reservation in the

State of New York... unless they shall hereafter voluntarily

sell their lands where they reside & agree to do so... [t]hey

will not be compelled to sell or remove.” (Resp. App. 10a).

This Court interprets “Indian treaties as the Indians

themselves would have understood them.” Minnesota v.

Mille Lacs Band, 526 U.S. 172, 196 (1999). The Indians

would have understood a treaty as it was explained to them by

a federal commissioner. /d. at 197-199.

The terms of the treaty were consistent with Gillet’s

promises. The treaty (Pet. App. 147-48) contained no cession

of Oneida lands in New York.” Article 1 ceded Wisconsin

lands of the New York Indians, and Article 2, “{ijn

consideration of the above cession and relinquishment,”

provided for the United States to remove the New York

Indians to Kansas and to have “a permanent home” there.

Article 3 then provided for forfeiture of Kansas lands for any

New York Indians who did not remove to Kansas, implying

that removal was not obligatory and that there would be no

forfeiture of New York lands. Then, in Article 13, which

specifically addressed the Oneidas, the treaty conditioned

their removal on “mak[ing] satisfactory arrangements with

the Governor of the State of New York for the purchase of

their lands at Oneida.” Nothing in the treaty obligated them

to make those arrangements. It is clear from the record in

Boylan that the Oneidas did not sell all of their land and

remove from New York. Instead, they did what

Commissioner Ransom Gillet told them they could do: keep

their land and stay on their New York reservation.

Because the treaty does not refer to the land in issue

here, Sherrill is necessarily asking that the Treaty of Buffalo

Creek be construed as ratifying all pre-1838 sales of Oneida

land. That argument founders on Oneida II's rejection of just

such a ratification argument in the absence of plain and

unambiguous ratifying language. 470 U.S. at 246-48 & n.19

(references to earlier sales not a ratification of them); see

Minnesota v. Mille Lacs Band, 526 U.S. at 200-202 (rejecting

argument that subsequent treaty and statute extinguished prior

treaty rights not mentioned); see also Oneida II, 470 U.S. at

269 n.24 (Stevens, J., dissenting) (referring to Treaty of

Buffalo Creek); Oneida Indian Nation v. County of Oneida,

2 Sherrill asserts that the Second Circuit conditioned

reservation disestablishment on the presence of cession language.

(Pet. 21). The Second Circuit actually stated that explicit cession

language may be relevant but is not required. (Pet. App. A31).

434 F. Supp. at 539 (Treaty of Buffalo Creek did not ratify

earlier illegal sales); cf Solem v. Bartlett, 465 U.S at 472-75

(statute directing the Secretary of the Interior “to sell and

dispose of” tribal land not explicit enough to eliminate

reservation status).

Finally, disestablishment of the Oneida reservation in

New York is not reflected in New York Indians II, which held

the United States liable for the value of the Kansas lands

promised to the New York Indians. The Second Circuit

correctly explained that, in New York Indians II, the Court

imposed liability because the New York Indians ceded

Wisconsin lands to the United States in exchange for Kansas

lands. That deal could not be undone; the ceded Wisconsin

lands and the Kansas lands had been sold to private parties.

The Court noted that the United States retained the proceeds

from sale of that land, in Wisconsin and Kansas, and thus

held the United States liable to pay the New York Indians the

value of what had been promised to them in Kansas. The

decision does not suggest that the damage award alienated

New York lands. See Oneida Il, 470 U.S. at 253 (no basis to

hold that Oneidas’ claims “have been satisfied”).

od The Oneidas’ Lands Never Lost

Reservation Status Through A Cessation of

Tribal Existence.

Review of Sherrill’s final question presented should

be denied because, contrary to Sherrill’s suggestion, the

Second Circuit’s decision regarding continuous tribal

existence does not conflict with Mashpee Tribe v. Secretary

of the Interior, 820 F.2d 480 (1" Cir. 1987)(Mashpee II)

(Breyer, J.), and because resolution of the question would not

affect the judgment, the Second Circuit having concluded

that, “even if continuous tribal existence were required, the

record before us shows it.” (Pet. App. A44).!

The Second Circuit cited with approval both of the

First Circuit’s rulings concerning the land claim of the

Mashpee Tribe. (Pet. App. A43-44). Mashpee II involved

tribes that never were federally recognized and that sought

recognition on the basis of scattered documents that did not

bind the federal government. 820 F.2d at 484. The issue was

not continuity. It was whether the plaintiffs “1) were tribes at

the time the land was alienated and 2) remain tribes at the

time of suit.” 820 F.2d at 482. There is no question that the

Oneidas meet that test.

The Second Circuit was correct that, because “the

trust relationship [defined by the Oneidas’ treaties and the

Nonintercourse Act] has not been terminated or abandoned,”

(Pet. App. A43), the Oneidas’ land retains reservation status

when in the Nation’s possession. Sherrill cites no authority

for its proposal (Pet. 24) that a federally-recognized tribe

must demonstrate its continuous existence in order to assert a

claim to its reservation land. “Once a tribe has been

recognized, the removal of that re.ognition, like reservation

disestablishment, is a question for other branches of

government, not the courts.” (Pet. App. A44) (citing United

States v. Holliday, 70 U.S. 407, 419 (1865)).

The record shows that federal recognition of the New

York Oneidas was not terminated. The federal government

continued to honor its 1794 treaty obligation to deliver

annuities to New York to the Oneidas throughout the period

§Sherrill also asserts a conflict with Golden Hill Paugussett

Tribe v. Weicker, 39 F.3d 51 (2d Cir. 1994). (Pet. 24). There is no

conflict because the Second Circuit applied Golden Hill. (Pet. App.

A43). Regardless, there is no Circuit split.

when Sherrill would say the Oneidas ceased to exist. Oneida

Indian Nation v. County of Oneida, 434 F. Supp. at 538 (CA

JA 1506-18). The annuities are an uninterrupted recognition

of the Oneidas as a party to treaties that protect the Oneida

reservation, which is confirmed by the record in the test case

litigation. See CA JA 1520 (BIA affidavit stating that federal

government recognizes Oneida Indian Nation of New York as

“one of the Indian tribes which entered into and signed” three

treaties with the United States protecting Oneida land and “as

the Indian tribe which remained on the New York Oneida

Reservation”). ;

Congress has delegated authority to the Secretary of

the Interior to acknowledge tribes and to publish lists of

acknowledged tribes. The Nation was on the first list in 1979,

44 Fed. Reg. 7325, 7326 (Jan. 31, 1979), and is on the current

list, 68 Fed. Reg. 68180 (Dec. 5, 2003). “The Department’s

position is, and has always been, that the essential

requirement for acknowledgment is continuity of tribal

existence rather than previous acknowledgment.” 59 Fed.

Reg. 9280 (Feb. 25, 1994). Department of Interior

acknowledgement “establishes tribal status for all purposes.”

H.R. Rep., 103-781 at 2, reprinted in 1994 U.S.C.C.A.N.

3678, 3679 (emphasis added).

In relying on excerpts from reports of Indian agents,

Sherrill is arguing for an unprecedented kind of de facto

termination. It is, however, up to Congress alone to termunate

a reservation once established. Solem v. Bartlett, 465 U.S. at

471: United States v. Celestine, 215 U.S. 278, 285 (1909).

There has been no termination of the Oneida reservation or of

the Nation. See e.g., South Carolina v. Catawba Indian Tribe,

476 U.S. 498 (1986) (statutory termination of Catawba tribe).

In United States v. John, 437 U.S. at 653, this Court

concluded that federal protection of the Mississippi Choctaws

survived removal of most of the tribe to Oklahoma and a

lapse in federal supervision. As here, Congress did not strip

the Mississippi Choctaws of federal protection. Cass County

v. Leech Lake Band, 524 U.S. 103 (1998), which Sherrill cites

for the rule that Indian land is taxable once federal protection

is removed, (Pet. 25), only underscores the importance of

congressional action. In Cass County, Congress made

reservation land taxable by an allotment statute.

As to the Oneidas in particular, Sherrill’s contention

that the Oneida reservation was stripped of Nonintercourse

Act protection by a lapse in tribal existence is also

inconsistent with the result in Oneida I]. This Court referred

to the Nation as a “direct descendant” of the Oneida Nation

that entered into treaties with the United States. 470 U.S. at

230. The Court’s decision followed lower court litigation in

which the Oneidas satisfied the Mashpee standards that

Sherrill invokes here. Oneida Indian Nation v. County of

Oneida, 434 F. Supp. at 537-38.

Sherrill assembles quotations referring to tribal

abandonment, (Pet. 25-27), but carefully avoids claiming that

it has evidence of abandonment by the New York Oneidas.

Abandonment means that “(t]he Indians had to ‘intend{ | to

give up their tribal organization’ and abandon their tribal

rights and status voluntarily.” Mashpee Tribe v. New Seabury

Corp., 592 F.2d 575, 587 (1" Cir. 1979) (Mashpee /). The

Annual Reports of the Commissioner of Indian Affairs

throughout this period show that the Oneidas did not abandon

the reservation as a tribe. They continued to occupy a 350-

acre “Oneida reserve” in substantial numbers. (CA JA 1391-

1514). Each Annual Report contains a name-by-name census,

or roll, of the 150 or sg Oneida members living on the Oneida

reservation. (/d.). The 1890 Annual Report referred to “the

Oneida Reserve, recognized by the treaty of 1794 with the Six

Nations (7 Stat., p. 45), consist[ing] of detached farms held in

severalty by heads of families and containing] in all about

350 acres.” (CA JA 1226): see also (CA JA 1229). Even the

decision in United States v Elm, 25 F. Cas. 1006, 1008

(N.D.N.Y. 1877), acknowledges that the Oneidas continued to

appoint chiefs to receive federal annuities.

No court today can improve on the assessment of

Oneida tribal existence made in Boylan, which was decided

by a federal judge in New York based on a record that

included testimony from witnesses, among them the Oneidas’

chief. Indeed, in 1907, the State of New York, in its filing in

the Boylan proceedings, reported that the Attorney General

“was unable to discover that there is anyone who disputes”

that the Oneidas had continued to possess the 32 acre tract as

a band of tribal Indians led by chiefs (and were never subject

to state taxes). (Resp. App. 15a-16a). The United States also

formally alleged that the Oneidas remained wards and

dependents of the federal government and were entitled to

invoke the protection of federal laws and treaties against the

state eviction order. The court found that the Oneidas

remained a tribe, continuously occupying a part of their

reservation. United States v. Boylan, 256 F. 468, 477-78,

481, 486 (N.D.N.Y. 1919) (evidence “shows conclusively

they have not abandoned their tribal relations”).2. The Second

Circuit affirmed that finding. 265 F.165, 171, 174 (2d Cir.

1920). The memories of the Boylan witnesses, the findings of

the court who saw them and the conclusions of New York’s

*1f a cessation of tribal existence eliminated the Oneidas’

rights, that would have to be true as to the entire reservation.

Sensibly, Sherrill does not argue that the Boylan land is not

federally protected reservation land immune from taxation. See

Waterman v. Mayor, City of Oneida, 280 N.Y .S. 2d 927 (N.Y. Sup.

1967) (holding Boylan land is not taxable).

Attorney General cannot be undermined by the largely

unexplained views of the observers cited by Sherrill.!°

CONCLUSION

For the foregoing reasons, Sherrill’s petition for a writ

of certiorari should be denied.

Respectfully submitteu,

Peter D. Carmen William W. Taylor, III

MACKENZIE HUGHESLLP Michael R. Smith

P.O. Box 4967 David A. Reiser

101 South Salina Street ZUCKERMAN SPAEDER LLP

Syracuse, NY 13221 1201 Connecticut Avenue, NW

Washington, D.C. 20036

January 20, 2004

To avoid the significance of Boylan, Sherrill refers to

three scattered post-Boylan statements about the disappearance of

the Oneidas and their reservation. Those statements are not a basis

to deny the Oneidas’ tribal existence. The statements are directly

inconsistent with the formal position of the United States and the

decision of the court in Boylan when there was an actual

controversy to be decided. Moreover, the statements are

conclusory and reflect nothing more than that the Oneidas had lost

possession of almost all of their reservation. As to Cohen’s

Handbook of Federal Indian Law 416-17 (1942 ed.), it merely

quotes from a 1915 memorandum, written before Boylan, and

describes it generally as an “interesting account of the tribes

inhabiting Western New York.” Cohen did not say that the

memorandum was accurate with respect to the Oneidas.

Handbook, 417 n.6. This Court was not swayed by Mississippi's

reliance on a similar statement in the Handbook regarding the

Mississippi Choctaws. United States v. John, 437 U.S. at 651 n.20.

APPENDIX

- ot - aad pl) ba & .

A ee SO Pd aes a OT

OPINION, ATTORNEY GENERAL WM. BRADFORD’S

WITH LETTER OF TRANSMITTAL TO SECRETARY OF

WAR

The Attorney General has the honour of Stating his opinion

upon the question propounded to him by the Sec’ of War, Viz,

whether the State of New York has a right to purchase from

the Six Nations or any of them the lands claimed by those

nations and situate within the acknowledged boundaries of

that state, without the intervention of the general government.

By the Constitution of the United States, Congress has

power to regulate commerce with the Indian Tribes, and by

the act of 1 March 1793, it is expressly enacted, That no

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 pursuant to the Constitution, that it shall be a

misdemeanor in any person not employed under the authority

of the United States in negotiating such Treaty or convention

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 &c.

The language of this act is too express to admit of any

doubt upon the question unless there be something in the

circumstances of the case under consideration to take it out of

the general prohibition of the law.

Nothing of this kind appears on the documents

submitted to the attorney General. It is true, that by treaties

made by the State of New York with the Oneidas, Onondagas

and Cayugas, previous to the present Constitution of the

United States, those nations ceded all their lands to the people

of New York, but reserved to themselves and their posterity

forever (for their own use & cultivation, but not to be sold,

leased or in any other manner disposed of to others,) certain

tracts of their said lands, with the free right of hunting &

fishing &c. So far therefore as respects the lands thus

reserved the treaties do not operate further than to secure to

the State of New York the right of preemption: but subject to

this right they are still the lands of those nations, and their

claims to them, it is conceived cannot be extinguished bu[t] by

a treaty holden under the authority of the United States, and in

the manner prescribed by the laws of Congress.

June 16 — 1795

Sir/

I do myself the honor to transmit to you my opinion on

the question state[d] in your letter of the 13 instant and am

with great respect & esteem

Your most ob! Sv'

Signd/

The Sec’ of War Wm. Bradford

This is a true and complete copy of a document found in the

Henry O’Reilly Papers. Mss Collection. New York

Historical Society. New York City. Vol. 11.

26" Congress [Confidential B.] 1” Session

MESSAGE

FROM

THE PRESIDENT OF THE UNITED STATES,

TRANSMITTING

The amended treaty with the New York Indians, and certain

documents relating thereto.

JANUARY 14, 1840.

Read, and with the treaty and documents referred to the

Committee on Indian Affairs.

JANUARY 15, 1840.

Ordered, That the message, treaty, and accompanying

documents, be printed, in confidence, for the use of the

Senate.

* * *

[29]

- *

No. 3.

WASHINGTON, October 25, 1838.

Sir: In pursuance of the instructions from your bureau

to me, under date of July 9, 1838, I have submitted to the

several tribes of New York Indians the treaty concluded at

Buffalo creek on the 15" day of January last, together with the

amendments proposed by the Senate of the United States, in

its resolution of ratification of the 11" of June last. I now

hand you a copy of the amended treaty, with the assent of the

several tribes in writing. At the time of making the

submission, I fully and fairly explained the treaty and

amendments to each tribe assembled in public council, ac-

cording to the letter and spirit of the resolution of the Senate. I

have now the honor to report to you the result of my labors

with each of the several tribes.

Oneidas in New York.

On the 9" day of August last, | met this tribe in full

council on their reservation in the State of New York, and

communicated to them the talk ad-

[30]

dressed to the New York Indians from your office, and made

such explanations as were necessary to enable them fully to

understand every thing relative to the matter under

consideration. Learning from them, before going into council,

that under the laws of New York they had a resident attorney

near them, | invited him to attend and hear my explanations,

and to be a witness to all my proceedings. He complied with

my request, and expressed his entire concurrence in all that |

did. Some of the tribe expressed their fears that they might be

compelled to remove, even without selling their land to the

State, and desired some evidence from me that such would not

be the construction of the papers. On consulting with

Timothy Jenkins, Esquire, their local State agent, I drew up

and gave them an assurance te that effect, a copy of which I

hand you, marked No. |. On receiving this, a large number

signed the written assent, which is attached to the manuscript

copy of the treaty. The assent is far more numerously signed

than the treaty itself was, and embraces the names of

prominent men of each of the parties into which this tribe is

subdivided. In my judgment it is sufficiently signed, and

ought to receive your approbation. By the treaty, the sum of

four thousand dollars is to be paid to Baptiste Powlis, and the

chiefs of the first Christian party, residing at Oneida, and the

sum of two thousand dollars to William Day, and the chiefs of

the Orchard party residing there, for expenses incurred and

services rendered in securing the Green Bay country, and the

settlement of a portion thereof. I was authorized by my

instructions, that if “the Oneidas, who signed the treat: at

Buffalo, should give their assent to it as amended, to apportion

the sums of $4,000 and $6,000 [$2,000] therein stipulated to

be paid to them respectively, upon which apportionment the

payment will hereafter be made.” After the assent was fully

signed, the chiefs of the parties, to whom this money is to be

paid, proposed an apportionment, to which I gave my consent,

no one objecting. A duplicate of this apportionment I hand

you, marked No. 2.

10a

To the Chiefs, Head men & warriors of the Oneida Indians in

New York.

In order to prevent all mistakes & to counteract all

misrepresentations concerning the purpose of the treaty

concluded between the United States and the New York

Indians at Buffalo Creek on the 15" day of January 1838, &

which was ratified by the Senate of the United States with

amendments which have been this day assented to by the

Oneidas at Oneida Castle, | hereby most solemnly assure them

that the treaty was not, & is not intended to compel the

Oneidas to remove from their reservations in the state of New

York to the west of the state of Missouri or elsewhere unless

- they shall hereafter voluntarily sell their land where they

reside & agree to do so. They can, if they choose to do so

remain where they are forever. The treaty gives them lands if

they go to them and settle there, but they need not go unless

they wish to. When they wish to remove, they can sell their

lands to the Governor of the State of New York, & then

imigrate. But they will not be compelled to sell or remove.

lla

Dated at Oneida Castle

August 9" 1838

R. H. Gillet

Commissioner

National Archives

Special Case 29

New York 1838-G 390 No. 1

12a

INFORMATION

IN RE

ONEIDA INDIANS,

LAID BY THE ATTORNEY-GENERAL BEFORE

THE SUPREME COURT.

AT THE BROOME SPECIAL TERM, NOVEMBER,

1907.

May it Please the Court: --

The Governor, on October 15", ult., was waited upon

by a delegation of Oneida Indians, who represented that they

expected to be dispossessed of a parcel of land, containing

about thirty-two acres, situate in the former town of Lenox,

Madison County, in consequence of an action pending in this

Court, entitled Julia Boylanvs. Mary George, et al.

These Indians declared that such act would constitute

a violation of their tribal rights and threw themselves upon the

protection of the State. The Governor entertained the

complaint and referred it to the Attorney-General for

investigation.

13a

The report of the Attorney-General set forth the

following matters: --

By treaty made between the State and the Oneida

Indians at Fort Schuyler, in 1788, whereby the State obtained

its first and largest cession of lands from the Oneida Indians,

it was provided that the People of the State might prevent any

persons, except Indians, from residing or settling on the lands

reserved to the Oneidas and their posterity by the treaty and

that if any person should, without the consent of the State

come to reside or settle on such reservation, then the Oneidas

and their posterity should forthwith give notice of such

intrusion to the Governor, and further that the Oneidas and

their posterity forever should, at the request of the Governor

aid the State in removing all such intruders.

(2)

The thirty-two acres in question is part of the lands

reserved by that treaty.

By treaty made on June 19, 1840, between the State

and the Oneidas then remaining within the State, and from

l4a

whom these complaining Indians descended, and by which

the reservation was reduced by cession to the State, but left so

as to include the land in question here, it was provided

(Article 6) that the lands thus reserved should not be liable to

any sale or transfer, absolute or conditional, or be subject to

any lease or mortgage, to any person or body, other than the

People of the State of New York.

By further treaty, entered into on May 23, 1842,

between the remaining Oneidas, made up of the First and

Second Christian Parties, then residing in the town of Lenox,

and the State of New York, certain lots of the Reservation

were ceded to the State.

At the same time and by the same instrument, a party

of those Oneidas then intending to emigrate, released to the

Home Party, and to its successors, all right, title and interest

in the lots to be retained, the treaty declaring that “all lots so

reserved shall be deemed the common property of all the

Indians who remain, and who are enumerated in Schedule B.,

annexed to the Treaty.”

15a

The thirty-two acres in question is part of Lot No. 17,

as so surveyed and reserved. That lot was allotted to a group

or band of twenty-three Indians, from whom the complaining

Indians in this case are descended.

The thirty-two acres in question is now in the quiet

and undisputed possession of some twenty or upwards of

Oneida Indians, who now have their home thereon. Their

ancestors likewise possessed it in peace for an unknown time

past. The present generation constitute, in fact, a band, with

chiefs or

(3)

head men, who speak for them, and claim tribal rights.

The State, on February 25, 1846, concluded a further

treaty with the remaining Oneida Indians in the States,

recognizing them as a band witha tribal government.

Later still, in the year 1870, the Legislature, by Chap.

445 of the Laws of that year, authorized the Commissioners

of the Land Office to treat with the Oneida Indians.

16a

No tax has ever been laid on this thirty-two acres of

land under any State authority. No record has been found of

any authority for an entry to be made upon this land, in

hostility to the Indian possession. The Attorney-General has

been unable to discover that there is anyone who disputes the

matters above referred to, by way of facts. Information

thereof is now laid before this Court, with the approval of the

Governor.

With the permission of the court, its attention is

respectfully invited to pertinent general considerations.

This Court, in common with other departments of

State government, must determine for itself what its duty may

be in respect to matters claimed to be the subject of

engagement between the State and Indian tribes whose

independent rights have been recognized. The same is true

when matters affecting Indian tribes are involved and their

rights have been made the subject of the State’s guardianship,

by reason of the helpless dependence of the Indians upon the

State. In reaching its conclusion as to that duty, this Court

17a

would exercise judicial wisdom, but the Court would not

thereby exercise a judicial function. The determination by

this Court of its own duty, if it leads to action prejudicial to

Indian rights, does not conclude the Indians thereby. If the

tate breaks its engagements by reason of the action of its

own courts, the State could not defend or disprove the breach

by setting up the judgment of its own courts in justification.

[4]

When two Peoples, politically independent, enter into

mutual engagements, the peaceable and just settlement of

contentions relating to the subject-matter are left of necessity

to adjustment by joint action of the parties. There is no

tribunal with jurisdiction common to the State and any Indian

tribe with which the State has treated.

The history of this piece of land subsequent to the

treaties may be disputed here. This Court, however, is not

bound to ascertain that history with certainty, for the facts

may not properly be treated as issuable matter, subject to

determination in a private action. State departments, officers,

18a

citizens and inhabitants must take notice of the public acts of

the State. If those acts are ignored, and in consequence,

Indian rights are violated, the State will be holden to the tribe

for redress of the injury, even though there is no tribunal to

enforce the obligation. If the State has, by permissive

statutes, consented that its citizens might deal directly with

Indian tribes, such transactions, as to the citizens concerned

therein, are private, nevertheless, and are not entitled to

receive judicial notice. When a tribe in possession denies that

it ever consented that citizens of the State should acquire

interests claimed by citizens in tribal lands, the issue must be

left for settlement to the State and the tribe.

To avoid being instrumental in violating obligations of

the State treaties, the de facto possession of Indian lands by

an Indian band should justify, if it does not create a duty on

the part of the State officers and departments, to refrain from

aiding citizens in acts hostile to the tribal possession. The

State Indians, by various treaties, have yielded their rights to

sell their lands without the consent

19a

[5]

of the State, but that fact does not validate a sale made with

State consent, but without tribal consent.

In addition to the right thus yielded by the Indians io

the State, the terms of all early legislation relating to Indians

evidences the assumption by the State of the protection of

Indian rights.

The relation of de facto guarandianship has thus

arisen, and the Indians have accepted that relationship. That

relationship forbids either private or official action

detrimental to Indian rights. To whom shall the ward turn,

with no court to protect it, if the guardian shall wrong the

ward? There are too few Indians left to dig up their buried

tomahawks. The State has encouraged and aided the process

of disbandment and dispersion of the Indians. The

helplessness of the remaining bands makes more pronounced

the duty of protecting them. Whatever the duty of State

officers might be, if the State, acting in its sovereignty, we

legislation approved by the Governor, should direct a hostile

20a

dispossession of Indians from reservation lands, the matter of

that duty is not involved here.

There is a special reason why Indian tribal rights

should not be violated under color of official action. That

arises out of an implied limitation on the powers of any public

department or officer, springing from the provisions of the

State Constitution, which still prohibits, as it always has,

traffic in Indian reservation lands, by any person subject to

State jurisdiction, where the Legislature has not expressly

consented thereto. (Constitution, Article I, sec. 15).

The statute (Indian Law, section 2) declaring that

Indians may hold and convey real estate the same as citizens,

no doubt authorizes citizens to traffic in Indian lands, but in

the case of Indian real estate, the consent would apply only

when the tribe has consented to sell, as a tribe, or to permit its

(6)

members to sell as individuals. If there is a dispute as to

whether the tribe or band ever gave such consent, the State’s

first duty is on the side of its Indian wards, as against its own

2la

citizens, because of the State’s self-imposed trust over Indian

interests. That trust has never yet been terminated by any

sovereign act of the State, brought home to the notice of the

Indians. No citizen is justified in invoking the courts to serve

his individual interests where, as a citizen, he is at the same

time estopped by an inconsistent existing public interest. If

the Courts aid citizens in trafficking in Indian lands, the

courts would be offending an implied and controlling

limitation, imposed by the Constitution upon their power.

The onus of defending the rights of Indians cannot rest on

Indians. To require of them, at the peril of losing their lands,

that they appear in our courts or do any other acts involving

expense or trouble to them, or which assumes them competent

to protect themselves, would be to deny the protection of the

guardianship which the State has undertaken.

Not only is the State in its sovereignty, the de facto

guardian of Indian rights, but every public officer, sworn to

uphold the Constitution, is bound to such action as is

consistent with the duty owing by the Sate to these Indians.

22a

No special procedure to insure unity of action between

the various State departments, so as to compass the

fulfillment of State obligations, bes been provided. The only

special instance covered by statute is a case where Indian

possession of reservation lands has been actually invaded. In

that case, the Commissioners of the Land Office must take

notice of it, and they are charged with the duty of action.

(Public Lands Law. sec. 7). In such a case, the court is

required to lend its aid to protect the Indian possession by

punishing the trespasser, and the trespasser, if a white citizen,

may not

[7]

plead title in himself and have the issue tried out. (People vs.

Dibble, 16 N.Y., 203). That case declares that, when Indian

tribal lands have never come into possession of Whites, the

making of an original entry is an act of sovereignty which an

individual citizen is not competent to perform. If as Judge

Brown said there, the moment an actual intrusion by Whites

is made out there is nothing more to be tried, nothing for the

23a

courts to determine in respect to the right of occupancy and

possession by the Indians, then the moment it appears that a

judicial proceeding is brought to effect an intrusion, there is

no question as to the legality of the existing Indian possession

which may be tried therein.

So long as the State, by making treaties and by failure

to tax Indian lands in possession of Indians, recognizes a

tribal organization as existing, the courts and officers of the

State should do the same. (Cayuga Nation vs. State, 99 N.Y.,

236).

in Ges quesent maaten, Go view which exe Sue

department may take is not of itself controlling over any

other. Each will determine upon the propriety of its own

action according to its own light. But the presence in the

Treaty of 1839 of the provisions that the Oneidas, having a

complaint to make, shall address the Governor, lays upon the

Executive the duty of giving information of the complaint, if

t Gane 0 ram, & euhnie @ en enti

means, according to the exigencies of the particular case.

24a

Respectfully submitted,

WILLIAM S. JACKSON,

George P. Decker, Attorney-General.

Deputy Attorney-General

November 16", 1907

25a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THE ONEIDA INDIAN NATION )

OF NEW YORK STATE, THE ONEIDA )

INDIAN NATION OF WISCONSIN, and ) CIVIL ACTION

Vv.

THE ONEIDA OF THE THAMES, ) No. 74-CV-187

)

Plaintiffs, ) (LEK/DRH)

)

and )

)

UNITED STATES OF AMERICA, )

)

Plaintiff-Intervenor, )

)

THE STATE OF NEW YORK, COUNTY ) (Federal

OF MADISON, NEW YORK, and ) Common Law

COUNTY OF ONEIDA, NEW YORK, _ ) Claims;

) Nonintercourse

) Act Claims)

Defendants. )

26a

55. The United States denies the allegations of

paragraph 55. Disestablishment is not an issue in this case.

To the extent that the issue of disesiab':shment is relevant to

the present controversy, the United States takes the position

that the reservation has not been disestablished.

* * *

DEFENSES

* * *

[10]

* * *

7. No federal statute or treaty disestablished or

diminished the boundaries of the Oneida Reservation as

acknowledged by the 1794 Treaty of Canandaigua and by

other federal treaties.

27a

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THE ONEIDA INDIAN NATION )

OF NEW YORK STATE, THE ONEIDA )

INDIAN NATION OF WISCONSIN, and ) CIVIL ACTION

THE ONEIDA OF THE THAMES, ) No. 74-CV-187

)

Plaintiffs, ) (LEK/DRH)

)

and )

)

UNITED STATES OF AMERICA and __)

NEW YORK BROTHERTOWN )

INDIAN NATION )

)

Plaintiffs-Intervenors, )

)

v. )

)

THE STATE OF NEW YORK, COUNTY ) (Federal

OF MADISON, NEW YORK, and ) Common Law

COUNTY OF ONEIDA, NEW YORK, _ ) Claims;

= ) Nonintercourse

) Act Claims)

Defendants. )

)

RESPONSE OF THE UNITED STATES TO THE

DEFENDANTS’

FIRST SET OF INTERROGATORIES

[15]

28a

INTERROGATORY NO. 12

Do you contend that any “conditions, precedent and

subsequent” (as alleged in Affirmative Defense 4 of the

Plaintiff Tribes’ Reply) contained in the 1838 Treaty of

Buffalo Creek failed? If so, state the basis for your

contention and identify all documents that support your

contention.

Response:

Without waiving any general or specific objections,

and subject to continuing investigation, the United States

responds as follows: Yes. In Article 2 of the Treaty of

Buffalo Creek, the United States agreed “to set apart [a] tract

of country, situated directly west of the State of Missouri, as a

permanent home for all the New York Indians.” The tract

reserved for the New York Indians was sold, making removal

under the terms of the Treaty impossible. See New York

Indians v. United States, 170 U.S. 1, 24 (1898) (“The lands

west of the Mississippi (the Kansas lands) were, after the

treaty of Buffalo Creek, surveyed and made a part of the

public domain, and sold or otherwise disposed of by the

29a

United States... .”). See also Sen. R. 910, 52d Congress, 1"

Session, July 12, 1892 (same). In addition, under the Treaty,

it was the United States’ responsibility to remove the Indians.

See Fellows v. Blacksmith, 60 U.S. 366 (1856). The United

States never undertook that responsibility, even though with

regard to other removal treaties, the United States had been

willing to use force, if necessary, to carry out treaty terms.

Oneida 51 2218. Article 13 of the treaty conditions Oneida

removal to lands reserved them under the Treaty upon

“satisfactory arrangements with the Governor of the State of

New York for

[16]

the purchase of their lands at Oneida.” In the absence of

satisfactory arrangements, there Oneidas were not required to

move. Such arrangements had to comply with federal law,

including the Nonintercourse Act. The Oneidas never made

arrangements to sell land to New York in order enable

removal to Kansas. In addition, removal was understood by

all parties to be conditioned upon a voluntary willingness on

30a

the part of the New York Indians to be removed. The United

States was unwilling to appropriate funds to facilitate removal

in light of apparent unwillingness of any significant group of

New York Indians to remove. See Oneida 51 2216-31 (1846

Report of United States Commissioner of Indian Affairs);

Oneida 51 2238-43 (1844 Report of United States

Commissioner of Indian Affairs). The Oneidas were assured

by a representative of the United States that the Treaty did not

require their removal and that “([t}hey can if they choose to do

so remain where they are forever.” Ransom Gillet to Chiefs,

Headmen, and Warriors of the Oneida Indians in New York,

August 9, 1838.

INTERROGATORY NO. 13

With respect to the denial contained in paragraphs 19

and 30 of the U.S. Reply, describe in detail each and every

action the United States has taken to reserve, acknowledge, or

recognize rights of the Nation or Plaintiff Tribes in the

Subject Land, and identify all documents that support your

contention.

The United States objects to Interrogatory No. 13 on

the grounds that it seeks information that is part of the public

3la

record or is otherwise as available to the State as it is to the

United States. A proper and complete response to

Interrogatory No. 13 requires a detailed review of the

historical record, and defendants are as capable of

undertaking such work as the United States. Further,

Interrogatory No. 13 is irrelevant to the question of liability.

Without waiving any general or specific objections,

and subject to continuing

[17]

investigation, the United States responds as follows: The

United States reserved the subject land to the Oneida Nation

through the Treaty of Canandaigua. The United States

participated as an amicus supporting the Oneida plaintiffs in

County of Oneida v. Oneida Indian Nation, 470 U.S. 226

(1985). The United States acted to secure the Oneidas in their

rights to their land in United States v. Boylan, 256F. 468

(N.D.N.Y. 1919).

32a

INTERROGATORY NO. 14

Set forth in detail the basis for the United States’

denial in paragraph 42 of the U.S. Reply of the allegation that

under the 1788 Treaty of Fort Schuyler the Nation “did cede

and grant all their lands to the State forever,” and identify all

documents that support your contention.

Response:

The United States objects to this interrogatory on the

grounds that it seeks information regarding a legal

conclusion.

Without waiving any general or specific objections,

and subject to continuing investigation, the United States

responds as follows: The Treaty of Fort Schuyler is the best

evidence as to its legal meaning. The Second Article of the

Treaty reserves lands in the State of New York to the

Oneidas. See also County of Oneida v. Oneida Indian Nation,

470 U.S. 226, 231 (1985) (noting that under the “’treaty’” of

Fort Schuyler, the State “purchased the vast majority of the

Oneidas’ land,” but that the “Oneidas retained a reservation of

about 300,000 acres”’).

33a

INTERROGATORY NO. 15

Do you contend that the Nation retained aboriginal title to any

lands that are referred to in the 1788 Treaty of Fort Schuyler?

If so, identify such lands, state the basis for your contention

and identify all documents that support your contention.

Response:

[18]

The United States objects to this interrogatory on the

grounds that it seeks information regarding a legal

conclusion. In addition, this interrogatory does not concern

matters relevant to this litigation since the Court has stricken

all defendants defenses relating to the claim that the Oneida

Nation ceded all their aboriginal land in the Treaty of Fort

Schuyer. See Oneida Indian Nation v. New York, 194 F.

Supp.2d 104, 140 (N.D.N.Y. 2002) (“[{T]he Court finds that

the Treaty of Fort Schuyler cannot reasonably be understood

to have divested the Oneidas of their aboriginal title in the

subject lands.”).

INTERROGATORY NO. 16

As to the denial in paragraph 49 of the U.S. Reply,

state the manner in which you contend that the State’s interest

34a

in the land set aside for the use of the Nation under the 1788

Treaty of Fort Schuyler was “decrease[d] or otherwise

affect{ed] by the 1794 Treaty of Canandaigua” and identify

the precise language in the 1794 Treaty of Canandaigua that

did so.

Response:

The United States objects that this interrogatory is

irrelevant because the court has dismissed the State’s takings

counterclaim, finding that the State has no compensable

interest that was lost under the Treaty of Canadaigua. See

Oneida Indian Nation of New York v. New York, 194 F.

Supp.2d 104, 146-47 (N.D.N.Y. 2002). The United States

also objects that this interrogatory is confusing and

ambiguous given that paragraph 49 of the United States Reply

does not concem either the Treaty of Fort Schuyler or the

Treaty of Canandaigua. Without waiving any general or

specific objections, and subject to continuing investigation,

the United States responds as follows: In paragraph 45 of the

Second Amended Complaint, the United States denied the

State’s contention that, in the Treaty of Canandaigua, the

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United States merely acknowledged the lands reserved to “the

Oneidas in its treaties with the State but did not

[19]

decrease or otherwise affect the rights or interest of the State

in these lands and had no power or authority to do so under

the constitution or laws of the United States.” New York

State Answer, Counterclaim V, 445. When the State ratified

the Constitution, it recognized the United States’ exclusive

authority over Indian land; while the State retained the right

of preemption, Article II of the Treaty of Canandaigua made

explicit that Oneida possessory rights to the land could only

be extinguished through a sale of land transacted under the

authority of the United States. The precise language is the

single sentence comprising Article I] of the Treaty of

Canandaigua.

INTERROGATORY NO. 17

Did the United States compensate the State of New York in

any way for decreasing or otherwise affecting the State’s

interest in the land set aside for the use of the Nation under

the 1788 Treaty of Fort Schuyler? If so, state in detail the

36a

basis for your contention and identify all documents that

support your contention. :

Response:

The United States objects to Interrogatory No. 17 on

the following grounds: it seeks information that is neither

relevant to the subject matter of this litigation nor reasonably

calculated to lead to the discovery of admissible evidence.

The Court has dismissed the State’s takings counterclaim,

noting that “an assertion of federal control over Indian land

by the United States,” as occurred with the Treaty of

Canandaigua,” does not constitute a taking pursuant to the

Fifth Amendment for which the State should be

compensated.” Oneida Indian Nation v. New York, 194 F.

Supp.2d 104, 147 (N.D.N.Y. 2002).

INTERROGATORY NO. 18

With respect to the denials contained in paragraphs 48 and 49

of the U.S. Reply, do you contend that the 1838 Treaty of

Buffalo Creek did not require the Oneida Indians then

remaining in New York and Wisconsin to remove from those

States? If so, state in detail the basis for your contention.

[20]

37a

Response:

Without waiving any general or specific objections,

and subject to continuing investigation, the United States

responds as follows: Yes. The Treaty of Buffalo Creek made

removal of the New York Indians to the lands reserved for

them in Kansas dependent upon a number of conditions. See

response to Interrogatory No. 12.

INTERROGATORY NO. 19

Do you contend that at any time since the 1838 T

Buffalo Creek the United States has recognized any porticn of

the Oneida Reservation as an Indian reservation under the

superintendence of the United States or a right of the Nation

or any of the Plaintiff Tribes to exercise tribal sovereignty or

jurisdiction over any parts of the Oneida Reservation? If so,

identify which portion of the Oneida Reservation, describe in

detail the basis for that contention and identify all documents

that support such contention.

Response:

The United States objects to Interrogatory No. 19

insofar as providing a complete answer is unduly burdensome

because it would require a review of the extensive histurical

record spanning over two hundred years. Further, since that

record is as available to defendant to the United States, the

38a

United States should not be required to do defendants work of

reviewing documents and determining how they should be

used in litigation.

Without waiving any general or specific objections,

and subject to continuing investigation, the United States

responds as follows: See response to Interrogatory No. 13.

INTERROGATORY NO. 20

Do you contend that the United States Senate, in voting on the

1838 Treaty of Buffalo Creek, intended to recognize an

Oneida Indian reservation in New York after the Oneidas

removed to Indian Territory as contemplated by that Treaty?

If so, state in detail the basis for your contention and identify

all documents that support such contention.

Response:

[21]

The United State objects that this interrogatory calls

for speculation. Without waiving any general or specific

objections, and subject to continuing investigation, the United

States responds as follows: The United States contends that

the Treaty of Buffalo Creek does not indicate what would

happen to the Oneida Reservation in New York in the event

39a

the Oneidas were willing and able to avail themselves of the

opportunity offered by the Treaty to remove to lands in

Kansas. The United States contends that what may have been

intended had the Oneidas removed pursuant to the Treaty of

Buffalo Creek is irrelevant to this litigation because the

Oneidas did not remove from their land pursuant to the

Treaty.

INTERROGATORY NO. 21

lleguion tht afer the Agreements and Trametes th

Oneidas removed from the State (except for a small remnant

fat po dp ee

rwhng uments relating

Response:

The United States objects to Interrogatory No. 21 on

the following grounds: it seeks information that is neither

relevant to the subject matter of this litigation nor reasonably

calculated to lead to the discovery of admissible evidence

relating to liability. The United States also objects that

providing a complete answer is unduly burdensome because it

40a

would require a review of the extensive historical record

spanning over two hundred years to find all records relating to

Oneida populations in New York and elsewhere. Further,

since that record is as available to defendants as it is to the

United States, the United States should not be required to do

defendants’ work of reviewing documents and determining

how they should be used in litigation.

Without waiving any general or specific objections,

and subject to continuing

[22]

investigation, the United States responds as follows: The

United States contends in its denial in paragraph 46 of the

U.S. Reply that the Oneida Indians who remained in New

York constituted more than a “remnant.” While in 1862, the

sub-agent assigned to the Office of the New York Agency

wrote the United States Commissioner of Indian Affairs and

characterized the Oneidas in New York as a “remnant”

numbering about a hundred, Oneida 51 2266, subsequent

counts noted that the New York Oneida population was

4la

increasing. See Oneida 51 2229 (1846 report estimating

Oneida population at 159); Oneida 51 2213 (1847 report

noting Oneida population increasing, estimating their number

at 210); OW000248 (indicating that a 1910 survey of Oneida

enrollment showed 5,476 located in New York with 2,301

located in Wisconsin).

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.