Amicus Curiae Brief — City of Sherrill v. Oneida Indian Nation of NY

Supreme Court, US |

FILED

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; 7 2) nr i

' ;

No. 03-855 , OFFICE OF THE CLERK |

Jn the Supreme Court of the United States

CITY OF SHERRILL, NEW YORK. PETITIONER

ONEIDA INDIAN NATION OF NEW YORK. ET AL.

ON WRIT OF ( ERTIOR ARI

POTHE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUTI

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

PAUL D. CLEMENT

Aching Nolicito) (sr bid ral

C‘onnsel of Ri cord

THOMAS L. SANSONETTI

Assistant Attorne Tmerai ral

RE DWINS. KNEEDLER

Dh puty Solicitor General

JEFFREY BOSSERT CLARK

Lh puty clssistant Aftoy wed

° j

ty: vmeradi

MALCOLM L. STEWAR’

Assistant to the Solicitos

dreneral

WILLIAM LAZARUS

DAVID C. SHILTON

ETHAN G. SHENKMAN

Mlornveys

[Th partment of Justices

Washington. DD (*, 2053040001

j Aty?) vl 5° 247

QUESTIONS PRESENTED

In 1997 and 1998, respondent Oneida Indian Nation of

New York (OIN) purchased certain parcels of property in

Sherrill, New York, through open market transactions.

Those parcels are situated within the boundaries of the

Oneida Indian Reservation as defined by the 1794 Treaty of

Canandaigua but had been acquired from the Oneidas with-

out the consent of the United States. The instant case in-

volves a dispute between the OIN and petitioner City of

Sherrill regarding the susceptibility of the tracts to state and

local taxation. The questions presented are as follows:

1. Whether the Treaty of Canandaigua established a fed-

eral reservation and exempted the relevant lands from state

and local taxation.

2. Whether the federal reservation created by the

Treaty of Canandaigua was disestablished by the 1838

Treaty of Buffalo Creek.

3. Whether the OIN, as a sovereign Tribe and a suc-

cessor-in-interest to the Oneida Nation (a party to the

Treaty of Canandaigua), may assert the statutory and treaty

rights of its predecessor Tribe.

(I)

TABLE OF CONTENTS

i canara earn eeeemeneeens

Summary of argument

Argument

I. The lands at issue in this case were immune

from state and local taxation at the time they

were sold by the Oneida Nation in 1805 and

reconveyed to a non-Indian in 1807 ..........ccccseeeeeeees

A. Petitioner’s argument is contrary to the

holding and basic premises of this Court’s

IED G00) cnccncencersecnsnscsusennecnscscnsssssseseen

B. Under the 1788 Treaty of Fort Schuyler,

the Oneida Nation retained aboriginal title to

the lands at issue in this case .......

C. The 1794 Treaty of Canandaigua confirmed

federal recognition of and protection for the

Oneida Nation’s New York reservation ............

Il. The 1838 Treaty of Buffalo Creek did not dis-

establish the Oneida Nation’s New York reser-

vation ur abrogate the tax immunity for the

Nation’s lands

A. The text of the Treaty of Buffalo Creek

does not effect a relinquishment of the

Oneidas’ New York lands, an abrogation

of the tax immunity of those lands, or a

disestablishment of the Oneidas’ New

York reservation

B. The negotiating history of the Treaty of

Buffalo Creek confirms that the Treaty did

not abrogate protections for the Oneidas’

New York lands

(IIT)

i

10

1]

12

13

16

17

IV

Table of Contents—Continued:

C. This Court's decision in New York Indians

1] does not support petitioner's contention

that the Treaty of Buffalo Creek

disestablished the Oneidas’ New York

reservation

III. The Oneida Indian Nation of New York is a

successor-in-interest to the historic Oneida

Nation and may assert its statutory and treaty

rights .

A. This Court recognized in Oneida I] that the

OLN is a successor-in-interest to the Oneida

Nation and is entitled to assert the rights

of its predecessor 25

B. Decisions concerning the recognition of

Indian Tribes are entrusted to the Executive

Branch, which has recognized the OIN to be

a successor-in-interest to the Oneida

Nation 25

Conclusion 30

TABLE OF AUTHORITIES

Cases:

Alaska v. Native Vill. of Venetie Tribal Gov't,

522 U.S. 520 (1998) 6, 24

Bryan v. Itasca County, 426 U.S. 373 (1976) 30

Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103 (1998) 8, 9, 16

Cayuga Indian Na.ion v. Pataki, No. 02-6111(L)

(2d Cir. argued Mar. 31, 2004) 5

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

(1831) 27

Clark v. Al'en, 331 U.S. 503 (1947) .. 26

County of Oneida v. Oneida Indian Nation,

470 U.S. 226 (1985)

Cases—Continued: Page

County of Yakima v. Confederated Tribes &

Bands of Yakima Indian Nation, 502 U.S. 251

(1998) 8, 9, 10, 16

Golden Hill Paugussett Tribe of Indians v. Weicker,

39 F.3d 51 (2d Cir. 1994) 26

Miami Nation of Indians of Indiana, Inc. v.

United States Dep't of the Interior, 255 F.3d 342

(7th Cir. 2001) 26

Minnesota v. Mille Locs Band of Chippewa

Indians, 526 U.S. 172 (1999) 21

Montana v. Blackfeet Tribe, 471 U.S. 759

(1985) x

New York Indians, 72 U.S (5 Wall.) 761 (1867) ...........cc0000 8,15

New York Indians v. United States, 170 US. 1

(1898) 3, 4, 19, 21, 22, 25

Oneida Indian Nation v. County of Oneida:

199 F.R.D. 61 (N.D.N.Y. 2000) 9

414 U.S. 661 (1974) 1,2, 15

434 F. Supp. 527 (N.D.N.Y. 1977) 25

719 F.2d 525 (2d Cir. 1983) 25

Oneida Indian Nation v. New York:

860 F.2d 1145 (2d Cir. 1988) 15

194 F. Supp. 2d 104 (N.D.N.Y. 2002) 5, 25

Oneida Indian Nation v. United States, 26 Ind. Cl.

Comm. 138 (1971), aff’d, 201 Ct. Cl. 546 (1973) ........c000- 25

Rodriguez v. United States, 480 U.S. 522 (1987) ..........0 23

Seneca Nation v. New York, No. 02-6185, 2004 WL

2008521 (2d Cir. Sept. 9, 2004) 5

Solem v. Bartlett, 465 U.S. 463 (1984) 17

South Dakota v. Yankton Sioux Tribe, 522 U.S.

329 (1998) 17, 19, 23

Tee-Hit-Ton Indians v. United States, 348 US.

272 (1955) 20

Vi

Cases—Continued: Page

United States v. Boylan:

256 F. 165 (2d Cir. 1920) ..........c00cecceceseees

256 F. 468 (N.D.N.Y. 1919), aff'd, 265 F. 165

(2d Cir. 1920)

United States v. Holliday, 70 U.S. (3 Wall.) 407

(1866) ....

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

United States v. Lara, 1248. Ct. 1628 (2004) oo...

United States v. Sandoval, 231 U.S. 28 (1913) .....cccccecee0e:

United States v. Santa Fe Pac. R.R..,

314 US. 389 (1941) ..

United States v. Washington, 641 F.2d 1368

(9th Cir. 1981)

United States v. Wheeler, 435 U.S. 313 (1978)...

United States v. Winans, 198 U.S. 371 (1905) ......cc 12

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1822) ............. 13

Constitution, treaties, statutes and regulations:

U.S. Const.:

Art. 2, § 2, C1.2 26

Amend. V 20

Articles of Agreement, Feb. 8, 1831, U.S.-Menomonee

Tribe, 7 Stat. 342 3,17

First, 7 Stat. 343 19

Treaty of Canandaigua, Nov. 11, 1794, U.S.-Canandaigua

Tribe, 7 Stat. 44 2

Art. 2, 7 Stat. 45 2, 3, 14, 16

Art. 3, 7 Stat. 45 14, 16

Art. 4, 7 Stat. 45 3, 16

Art. 6, 7 Stat. 46 3, 28

Treaty of Fort Schuyler, Sept. 22, 1788, New York-

Oneida Nation (visited Sept. 30, 2004) <http://

madisoncounty.org/motf/T1788.html> 2

SS 8S ERKERK &F B

Vil

Treaties, statutes and regulations—Continued:

Treaty of Fort Stanwix, Oct. 22, 1784, U.S.-Six

Nations, 7 Stat. 15

Art. 1, 7 Stat. 15

Art. 2, 7 Stat. 15

Treaty of Buffalo Creek, Jun. 11, 1838, U.S.-New York

Indians, 7 Stat. 550

Art. 1, 7 Stat. 551

Art. 2, 7 Stat. 551

Art. 13, 7 Stat. 554

Federally Recognized Indian Tribe List Act of

1994, Pub. L. No. 103-454, 108 Stat. 4791

(codified in part at 25 U.S.C. 479a to 47a-1)

25 U.S.C. 479a(2)

Trade and Intercourse Act of 1790, ch. 33, 1 Stat.

137

§ 4, 1 Stat. 138

Trade and Intercourse Act of 1793, ch. 19, 1 Stat. 329 ......

18 U.S.C. 1151

18 U.S.C. 1151(a)

25 U.S.C. 1

25 U.S.C. 2

25 U.S.C. 9

25 U.S.C. 71

25 U.S.C. 177

25 U.S.C. 461 et seq.

25 C.F.R:

Pt. 83

Section 83.2

Section 83.6(e)

Miscellaneous:

Commissioner of Indian Affairs, Annual Report of the

Department of the Interior:

1900

1901

1906

38

BSN SoRSRRLL wwe

Vill

Miscellaneous—Continued:

Felix S. Cohen, Handbook of Federal Indian Law

CRP GIRD censcsssssssnsnnsersemnsscssnnienemmniniemteneasmssmmetene

Fe UTED ccnicteteaesenicsccianiinseentntetiienianion

og ON

Be ED cncernentnrinsectnnccoremnereincantetenniemmnaeiess

ET TN

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

Sirtieth Annual Report of the Commissioner of Indian

a

Sixty-second Annual Report to the Commissioner of

ND Sr GED cctesntcnrsinscssicnntnniatsianscsenemreniiasriaees

In the Supreme Court of the Gnited States

No. 03-855

CITY OF SHERRILL, NEW YORK, PETITIONER

Vv.

ONEIDA INDIAN NATION OF NEW YORK, ET AL.

ON WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOk THE SECOND CIRCUIT

BRIEF FOR THE UNITED STATES

AS AMICUS CURIAE SUPPORTING RESPONDENTS

INTEREST OF THE UNITED STATES

The United States has a substantial interest in the inter-

pretation of federal treaties and statutes protecting Indian

interests, the proper resolution of issues concerning the rec-

ognition of Indian Tribes, and the exercise of governmental

authority in Indian country and over Indian lands. At the

invitation of the Court, the United States filed a brief as

amicus curiae at the petition stage of this case.

STATEMENT

1. a. Respondent Oneida Indian Nation of New York

(OIN) is a federally-recognized Indian Tribe and a direct de-

scendant of the Oneida Indian Nation (Oneida Nation), a

member of the Six Nations of the Lroquois Confederacy. The

Oneida Nation’s aboriginal homeland comprised some six

million acres in what is now east-central New York. See

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

230-231 (1985) (Oneida II); Oneida Indian Nation v. County

of Oneida, 414 U.S. 661, 664 (1974) (Oneida I).

After the Revolutionary War, the United States entered

into the Treaty of Fort Stanwix of October 22, 1784, with the

Six Nations. 7 Stat. 15. That Treaty gave peace to the four

(1)

2

Nations that had sided with the British during the Revo-

lutionary War, and it provided that the Oneida and Tus-

carora Nations—which had sided with the colonists—“shall

be secured in the possession of the lands on which they are

settled.” Arts. 1, 2, 7 Stat. 15. In the 1788 Treaty of Fort

Schuyler with the State of New York, the Oneida Nation

agreed to “cede and grant all their lands to the people of the

State of New York forever.” Pet. App. 136a. The Treaty

further provided, however, that the Oneidas would “hold to

themselves and their posterity forever” a specified tract of

approximately 300,000 acres near Oneida Lake. /d. at 137a;

see Oneida I], 470 U.S. at 231 (“[t}he Oneidas retained a

reservation of about 300,000 acres”).

b. In 1790, Congress passed the first of the Trade and

Intercourse Acts (also known as the Nonintercourse Acts),

which have long embodied essential features of federal In-

dian policy. Ch. 33, 1 Stat. 137. Section 4 of the 1790 Act

provided that “no sale of lands made by any Indians, or any

nation or tribe of Indians within the United States, shall be

valid to any person or persons, or to any state, whether hav-

ing the right-of pre-emption to such lands or not, unless the

same shall be made and duly executed at some public treaty,

held under the authority of the United States.” 1 Stat. 138.

The substance of that prohibition was carried forward by

Congress in the Trade and Intercourse Acts of 1793, 1796,

1799, 1802, and 1834, and it remains in effect today. See

Oneida I, 414 U.S. at 668 & n.4; 25 U.S.C. 177.

ce. On November 11, 1794, the United States and the Six

Nations entered into the Treaty of Canandaigua. 7 Stat. 44

(Pet. App. 141a-146a). In Article 2 of the i794 Treaty, the

United States “acknowledge[d] the lands reserved to the

Oneida, Onondaga and Cayuga Nations, in their respective

treaties with the state of New York, and called their reser-

vations, to be their property.” Pet. App. l4la. Article 2

further provided that “the United States will never claim the

same, nor disturb” the Nations “in the free use and enjoy-

ment” of those lands, and that “the said reservations shall re-

3

main theirs, until they choose to sell the same to the people

of the United States, who have the right to purchase.” Jbid.;

accord id. at 142a (Art. 4). The United States also promised

to expend $4500 annually for clothing and other goods for the

Six Nations. /d. at 143a (Art. 6). The Six Nations in turn

agreed that they would “never claim any other lands, within

the boundaries of the United States, nor ever disturb the

people of the United States in the free use and enjoyment

thereof.” Jd. at 142a-143a (Art. 4).

In 1795, the State of New York—without federal approval

—negotiated directly with the Oneida Nation to purchase

some of the Oneidas’ remaining lands. Oneida I], 470 U.S. at

232. Both Secretary of War Pickering and Attorney General

Bradford warned New York officials that title to the Six

Nations’ land could be extinguished only by a treaty entered

into under the authority of the United States. /bid.; Resp.

Br. in Opp. App. la-4a. Despite those warnings, the State

repeatedly purchased land from the Oneida Nation, without

federal authorization, during the late eighteenth and early

nineteenth centuries. See Pet. App. 9a; Oneida IJ, 470 U.S.

at 232. By 1838, the Oneida Nation retained only approxi-

mately 5000 of the 300,000 acres secured to it by the Treaty

of Canandaigua. Pet. App. 13a.

d. Between 1810 and 1816, the Six Nations purchased

substantial quantities of land in Wisconsin from the Meno-

monee and Winnebago Tribes. /d. at 10a & n.8; New York

Indians v. United States, 170 U.S. 1, 11-14 (1898) (New York

Indians II). The relevant terms of purchase ultimately

“were memorialized in a treaty between the federal govern-

ment and the Menominee in 1831, to which the New York

Indians gave their assent in 1832.” Pet. App. 10a n.8; see

Articles of Agreement, Feb. 8, 1831, U.S.-Menomonee Tribe,

7 Stat. 342. Although several hundred Oneidas moved to

Wisconsin during the 1820s, approximately 620 Oneidas

remained in New York as of 1838. Pet. App. 10a, 13a.

In 1838, the United States and several Tribes of New

York Indians entered into the Treaty of Buffalo Creek.

4

7 Stat. 550 (Pet. App. 147a-178a). The New York Indians

agreed to “cede and relinquish to the United States all their

right, title and interest to the lands secured to them at

Green Bay by the Menomonie treaty of 1831,” with the

exception of a specified tract there on which some New York

Indians then resided. /d. at 149a (Art. 1). “In consideration

of the above cession and relinquishment,” the United States

agreed to “set apart” a tract of approximately 1.8 million

acres in the Indian Territory, in what is now the State of

Kansas, “as a permanent home for the New York Indians.”

Ibid. (Art. 2); New York Indians II, 170 U.S. at 15; Pet. App.

12a. The vast majority of Oneida Indians residing in New

York and Wisconsin, however, ultimately refused to relocate

to Kansas. /d. at 13a. The reservation set aside for them in

Kansas pursuant to the 1838 Treaty therefore was restored

to the public domain and later disposed of by the United

States. /d. at 14a-1lda.

e. In 1970, the OIN filed suit in federal district court,

seeking damages for the fair rental value, during the period

between January 1, 1968, and December 31, 1969, of certain

parcels conveyed by the Oneidas to the State of New York in

1795. See Pet. App. 15a-16a; Oneida I], 470 U.S. at 229. The

gravamen of the suit was that the 1795 transaction had not

been approved by the federal government, as required by

the Trade and Intercourse Act of 1793, and that the sale was

therefore void under the terms of that Act. Jbid. This Court

in Oneida I] affirmed the determinations of the lower courts

that the defendant counties were liable under federal com-

mon law for their wrongful possession of the relevant lands.

See id. at 230, 253. The Court noted, however, that Con-

gress remained free to enact legislation resolving Indian land

disputes, id. at 253, and it left open the possibility that equi-

table considerations might limit the relief available to the

OIN in the absence of congressional action, id. at 253 n.27.

Litigation regarding additional claims brought by the OIN

and other New York Tribes, premised on the State’s alleg-

edly unlawful acquisition of tribal land, remains ongoing.

— _——

5

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

(N.D.N.Y. 2002); Seneca Nation v. New York, No. 02-6185,

2004 WL 2008521 (2d Cir. Sept. 9, 2004); Cayuga Indian Na-

tion v. Pataki, No. 02-6111(L) (2d Cir. argued Mar. 31, 2004).

f. In 1997 and 1998, the OIN purchased in open market

transactions from non-Indians fee simple title to certain

parcels of land in the City of Sherrill, New York. Pet. App.

2a. Those parcels are within the historical boundaries of the

300,000-acre reservation secured by the Treaty of Canan-

daigua. /d. at 8a n.5, 19a, 85a, 90a-9la. The tracts had been

sold by the Nation to an individual Oneida Indian in 1805 and

then reconveyed to a non-Indian in 1807. Jd. at 3an.3. Those

sales were not authorized by the federal government as

required by the Trade and Intercourse Acts. /d. at 43a-44a.

The OIN currently operates a gas station, convenience

store, and textile facility on the parcels. Pet. App. 2a, 64a.

Petitioner City of Sherrill assessed property taxes against

the parcels. After the Tribe refused to pay the property

taxes, petitioner initiated proceedings against the Tribe to

collect the taxes, purchased three of the parcels at a tax sale,

and then commenced eviction proceedings. /d. at 65a-66a.

2. In 2000, respondent OIN brought this action against

petitioner, alleging that the parcels described above are im-

mune from state and local taxation, and seeking declaratory

and injunctive relief. Pet. App. 73a. The district court

granted summary judgment for respondents. I/d. at 6la-

133a. The court held that the parcels are within the boun-

daries of the Oneida reservation acknowledged by the 1794

Treaty of Canandaigua, id. at 85a, 90a-9la, and that Con-

gress has never disestablished that reservation, id. at 100a.

The court concluded that the land at issue here “is Indian

Country and is not taxable by [local authorities].” Jd. at

105a.

3. The court of appeals affirmed in relevant part. Pet.

App. la-60a.

a. The court of appeals held that the parcels at issue are

exempt from state and local taxation because they “are lo-

6

cated on the Oneidas’ historic reservation land set aside for

the tribe under the Treaty of Canandaigua.” Pet. App. 24a.

The court explained that “reservation land” is “by its nature

* * * set aside by Congress for Indian use under federal

supervision,” and thus qualifies as Indian country under this

Court’s decision in Alaska v. Native Village of Venetie

Tribal Government, 522 U.S. 520 (1998). Pet. App. 24a. The

court observed that, “when Indian land has been alienated in

Ways inconsistent with federal law, Indian title remains with

the tribe.” /d. at 27a. The court then explained that “[t}he

Indian-country status of the alienated land is irrelevant for

tax purposes when non-Indians hold fee title, since they pay

state taxes,” but that “when the tribe holding Indian title

reacquires former reservation land, both forms of title co-

exist.” /d. at 27a-28a. In those circumstances, the court con-

cluded, “the state cannot tax [the land] and the tribe can no

longer legally alienate it, at least without federal approval.”

Id. at 28a.

b. The court of appeals rejected petitioner’s contention

that the 1838 Treaty of Buffalo Creek had disestablished the

1794 reservation. Pet. App. 33a-4la. The court found that

“[njothing in [the] text [of the Treaty of Buffalo Creek]

provides ‘substantial and compelling’ evidence of Congress’s

intention to diminish or disestablish the Oneidas’ New York

reservation.” Jd. at 34a. Rather, the court explained, “[tJhe

focus of the Buffalo Creek Treaty * * * was the exchange

of Wisconsin land—not New York land—for that in Kansas.”

Id. at 40a.

ce. The court of appeals rejected petitioner’s argument

that the parcels at issue here have lost their federally-pro-

tected status because the OIN has not existed continuously

since the establishment of the reservation. Pet. App. 42a-

45a. The court explained that there is “no requirement in

the law that a federally recognized tribe demonstrate its con-

tinuous existence in order to assert a claim to its reservation

land.” Jd. at 42a. The court also found that, “even if continu-

ous tribal existence were required,” the record demonstrates

7

that the Tribe has centinuously existed as “a direct descen-

dant of the original Oneida Indian Nation.” /d. at 44a. Judge

Van Graafeiland dissented on this issue, id. at 53a-60a, con-

cluding that there are “significant, unresolved questions of

fact as to whether the [OIN] has been in existence continu-

ously over the last century and a half,” id. at 60a.

SUMMARY OF ARGUMENT

I. This Court’s holding and analysis in Oneida I] rested

on the premise that the Oneidas’ New York lands were sub-

ject to federal protection in 1795. That understanding was

correct. Although the Oneidas ceded the bulk of their ab-

original lands to the State of New York in the 1788 Treaty of

Fort Schuyler, they retained aboriginal title to a 300,000-

acre parcel within which the tracts at issue here are located.

In any event, regardless of the precise nature of the title

held by the Oneidas as of 1788, the 1794 Treaty of Canan-

daigua secured the 300,000 acres as a federal reservation and

guaranteed the Oneida Nation the “free use and enjoyment”

of those lands. The tracts at issue in this case were therefore

clearly immune from state and local taxation when they were

sold by the Oneida Nation in 1805 and reconveyed to a non-

Indian in 1807 without federal approval.

II. The 1838 Treaty of Buffalo Creek did not disestablish

the reserva..on or abrogate the tax immunity secured by the

Treaty of Canandaigua. The central bargain reflected in the

1838 Treaty was an exchange of most of the New York

Indians’ Wisconsin lands for property located in the Indian

Territory. By the Treaty’s plain terms, the Oneidas’ obliga-

tion to remove to the West was contingent on their ability to

“make satisfactory arrangements” for the sale of their New

York lands. The negotiating history-of the Treaty reinforces

the natural reading of its text, since the Oneidas assented to

the Treaty as finally adopted only after receiving express

assurances from a federal commissioner that they would not

be compelled to remove from their New York lands. This

Court’s decision in New York Indians II does not suggest

8

that the 1838 Treaty was intended to require removal or to

disestablish the Oneidas’ New York reservation. Rather,

the award of damages in that case (and the New York Onei-

das’ receipt of a portion of that award) reflected the facts

that the Treaty had effected an immediate cession of most of

the Wisconsin lands, and that the Oneidas had not received

the western lands promised them in return.

III. As this Court recognized in Oneida I], the OIN is a

’ direct descendant of the Oneida Nation and is entitled to

assert the rights of its predecessor. Decisions regarding

tribal existence and recognition are entrusted to the political

Branches. Congress has assigned responsibility for such

decisions to the Department of the Interior, which has iden-

tified the OIN as a federally recognized Tribe and as a suc-

cessor-in-interest to the Oneida Nation. The fragmentary

materials identified by petitioner provide no legitimate

ground on which a court could reject that determination.

ARGUMENT

“The Constitution vests the Federal Government with ex-

clusive authority over relations with Indian tribes.” Mon-

tana v. Blackfeet Tribe, 471 U.S. 759, 764 (1985). “As a corol-

lary of this authority, and in recognition of the sovereignty

retained by Indian tribes even after formation of the United

States, Indian tribes and individuals generally are exempt

from state taxation within their own territory.” Ibid. Ab-

sent federal authorization, the States and their political sub-

divisions are thus “without power to tax reservation lands.”

County of Yakima v. Confederated Tribes & Bands of

Yakima Indian Nation, 502 U.S. 251, 258 (1998); see Cass

County v. Leech Lake Band of Chippewa Indians, 524

U.S. 103, 110-112 (1998); New York Indians, 72 U.S. (5 Wall.)

761, 768-772 (1867) (New York Indians 1) (holding that

Seneca land protected by Treaty of Canandaigua was

exempt from state taxation). And this Court has “consis-

tently declined to find that Congress has authorized such

taxation unless it has ‘made its intention to do so unmis-

9

takably clear.” Cass County, 524 U.S. at 110 (quoting

County of Yakima, 502 U.S. at 258).

As we explain below, the tracts at issue in this case are

within the boundaries of a federal reservation that was es-

tablished by treaty in 1794. Since that time, Congress has

neither authorized state or local taxation of the relevant

lands nor disestablished the reservation. If the tracts had

not been sold in violation of the Trade and Intercourse Acts,

but instead had remained continuously in the Tribe’s posses-

sion during the past two centuries, state and local taxation of

the lands would clearly be barred by the 1794 Treaty,

principles of tribal sovereignty, and federal supremacy over

Indian affairs. The court of appeals’ decision in this case

thus provides the OIN with nothing more than the immunity

from state and local taxation of its reservation lands that it

would have possessed if the tracts had not been unlawfully

alienated.

In Oneida II, this Court held that the OIN could assert a

federal common-law cause of action against the current

occupants of lands that were within the federal reservation

established by the Treaty of Canandaigua and that were

acquired by the State and private parties in violation of the

Trade and Intercourse Acts. The Court left open the pos-

sibility, however, that the lower courts, in fashioning an ap-

propriate remedy, might take into account the passage of

time and the consequent legitimate expectations of subse-

quent purchasers. See 470 U.S. at 253 n.27. In subsequent

lawsuits brought by the OIN and other New York Indian

Tribes, based on allegations that tribal lands had been alien-

ated in violation of the Trade and Intercourse Acts, substan-

tial litigation has ensued concerning the manner in which

those private interests should be balanced against the

Tribes’ interest in being restored to the positions they would

have occupied if no breaches of law had occurred. See, e.g.,

Oneida Indian Nation v. County of Oneida, 199 F.R.D. 61,

90-95 (N.D.N.Y. 2000) (based in part on equitable consi-

derations, district court denies plaintiffs’ request to author-

10

ize relief, including ejectment and monetary damages, from

private landowners).'

Unlike the tracts involved in Oneida I] and most of the

tracts involved in those other subsequent lawsuits, however,

the parcels at issue in the instant case were purchased by

the OIN in arm’s-length market transactions. That mode of

acquisition effectively moots the concerns identified in

Oneida II because it both protected the interests of innocent

owners and ensured that the Tribe paid for the value of any

improvements to the property. Petitioner’s attempt to tax

the OIN’s own reservation lands, moreover, constitutes a

particularly significant intrusion on tribal sovereignty and

the federally protected status of the lands. See County of

Yakima, 502 U.S. at 257-258 (explaining that, while States

possess significani regulatory authority over reservation ac-

tivities, the Court in the sphere of state taxation of reser-

vation land has employed “a more categorical approach”). If

the OIN, having reacquired reservation lands from willing

sellers, is not entitled to regain the immunity from state and

local taxation that it would have possessed if it had held the

lands continuously, it is difficult to see what remedy for the

prior wrongful alienation of those lands would be appro-

priate.

I. THE LANDS AT ISSUE IN THIS CASE WERE

IMMUNE FROM STATE AND LOCAL TAXATION

AT THE TIME THEY WERE SOLD BY THE

ONEIDA NATION IN 1805 AND RECONVEYED TO

A NON-INDIAN IN 1807

Petitioner contends (Pet. 17-31) that the tracts at issue in

this case were subject to state and local taxation even before

' The United States has taken the position that any relief in the land

claims cases can and should come from the State of New York alone. See,

eg., U.S. Second Amended Complaint (corrected) ¢ 2, Oneida Indian

Nation v. County of Oneida, No. 74-CV-187 (N.D.N.Y. June 10, 2002)

(“(Pjrivate landowners are not parties to this action, and the United

States does not seek any monetary or other relief from private landowners

in the Subject Lands.”).

11

they were sold by the Oneida Nation in 1805 and reconveyed

to a non-Indian in 1807. Petitioner argues that (1) the 1788

Treaty of Fort Schuyler between the Oneida Nation and the

State of New York extinguished the Tribe’s aboriginal title

to the lands; and (2) the 1794 Treaty of Canandaigua ac-

knowledged the existence of a state reservation but did not

establish a federal reservation or place the lands under

federal protection. Those contentions lack merit.

A. Petitioner’s Argument Is Contrary To The Holding

And Basic Premises Of This Court's Decision In

Oneida II

In Oneida II, this Court held that the OIN had a valid

federal common-law cause of action to vindicate its rights to

land that had been acquired by the State of New York in

1795 without federal authorization. 470 U.S. at 233-236. The

Court affirmed the determination of the court of appeals in

that case that the current owners of the property were liable

in damages for wrongful possession of the relevant tracts.

Id. at 230, 253. The Court’s analysis and holding rested on

the premise that the Oneida Nation had federally protected

title to those lands as of 1795, when the property was sold to

the State, and that the sale was in violation of the Trade and

Intercourse Acts.

The necessary implication of petitioner’s legal theory, by

contrast, is that the plaintiffs in Oneida I] had no valid legal

claim. Petitioner argues (Pet. 20-21) that the Oneida Na-

tion’s aboriginal title to the relevant lands was extinguished

by the 1788 treaty with the State, and that the lands were

never thereafter placed under federal protection. If those

contentions were correct, there would have been no basis in

Oneida II for treating the 1795 sale as violative of the Trade

and Intercourse Acts, and hence no ground for holding that

the OIN had a live cause of action under federal law based on

that violation. Acceptance of petitioner’s position would also

render meaningless the substantial volume of subsequent

litigation undertaken by the OIN and other Tribes in

reliance on this Court’s decision in Oneida I].

12

B. Under The 1788 Treaty Of Fort Schuyler, The Oneida

Nation Retained Aboriginal Title To The Lands At

Issue In This Case

Petitioner contends that the 1788 Treaty of Fort Schuyler

with the State of New York extinguished aboriginal title to

all of the land (five and one-half million acres) that the

Oneida Nation possessed at that time, while granting back to

the Oneidas a 300,000-acre “state reservation.” That reading

of the 1788 treaty is incorrect. Properly construed, the 1788

treaty excepted the 300,000-acre portion of Oneida lands

from any relinquishment of aboriginal title.

The first article of the treaty stated that “[t]he Oneidas do

cede and grant all their lands to the people of the State of

New York forever.” Pet. App. 136a. The second article pro-

vided, however, that, “[o}f the said ceded lands,” a specified

300,000-acre tract “shall be reserved for the following sev-

eral uses. That is to say, * * * the Oneidas shall hold [the

reserved lands] to themselves and their posterity forever for

their own use and cultivation, but not to be sold, leased or in

any manner alienated or disposed of to others.” Jd. at 136a-

137a; see id. at 137a (referring to “reservation to the

Oneidas” and “reservations of lands to the Oneidas for their

own use”). The terms “reserved” and “reservation,” with a

guarantee of the lands to the Oneidas “forever,” would most

naturally have been understood to except the 300,000-acre

parcel from the Tribe’s cession of land to the State, rather

than to grant the Tribe a reduced property interest in a

portion of the ceded lands. See Felix S. Cohen, Hamdbook of

Federal Indian Law 34 (1982 ed.) (“The term ‘Indian reser-

vation’ originally had meant any land reserved from an

Indian cession to the federal government regardless of the

form of tenure.”).

This Court has construed federal treaties employing a

similar formula—i.e., a general cession of tribal property, fol-

lowed by a specific “reservation”—as preserving rather than

extinguishing aboriginal rights in the reserved lands. See,

e.g., United States v. Winans, 198 U.S. 371, 381 (1905) (“Only

13

a limitation of [aboriginal rights} * * * was * * * in-

tended, not a taking away.”); cf. Worcester v. Georgia, 31

U.S. (6 Pet.) 515, 552-553 (1832). Consistent with that inter-

pretive approach, United States Attorney General Bradford

explained in a 1795 opinion that,

as respects the lands thus reserved|[,] the [state] treaties

[with the Oneidas, Onondagas and Cayugas] do not

operate further than to secure 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.

Resp. Br. in Opp. App. 2a-3a. This Court in Oneida IJ simi-

larly explained that, in the 1788 treaty, the State had “pur-

chased the vast majority of the Oneidas’ land,” while “(the

Oneidas retained a reservation of about 300,000 acres.” 470

US. at 231.

C. The 1794 Treaty Of Canandaigua Confirmed Federal

Recognition Of And Protection For The Oneida

Nation's New York Reservation

The correct disposition of this case ultimately does not

depend on whether the Oneida Nation retained its aboriginal

or other specially-protected rights in the 300,000-acre parcel

after the Treaty of Fort Schuyler, or instead relinquished

those rights and received a state-law property interest in the

lands. Under either construction of the 1788 treaty with the

State, the 1794 Treaty of Canandaigua between the United

States and the Six Nations established the relevant tract of

Oneida land as a federally-protected reservation. The 1794

Treaty thus immunized the lands from state and local

taxation and (together with the Trade an Intercourse Acts)

forbade their alienation without federal approvai. Petitioner

contends (Br. 23) that the “1794 Treaty of Canandaigua was

nothing more than an acknowledgment vy the federal gov-

ernment of the Oneida reservation previously created by

14

New York State in the 1788 Treaty of Fort Schuyler.” That

interpretation is contrary to the text and historical context

of the Treaty, and to this Court’s decision in New York

Indians I.

1. Rather than simply recognizing that specific lands

were “reserved to the Oneida, Onondaga, and Cayuga Na-

tions in their respective treaties with the State of New

York,” Article 2 of the 1794 Treaty states that the “United

States acknowledges” those lands, “called their reservations,

to be their property.” Pet. App. 14la. Article 2 further

states that the United States will “never claim” the reserva-

tions nor “disturb” those Nations “in the free.use and enjoy-

ment thereof,” and that “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.” /bid. By its

terms, Article 2 thus provides a federal guarantee of the

Oneida Nation’s ownership, free use and enjoyment, and pro-

tection against alienation of the land, rather than simply an

acknowledgment of the Nation’s state-law rights. In return,

the Tribes agreed that they would “never claim any other

lands, within the boundaries of the United States.” /d. at

142a-143a (Art. 4).

The historical context in which the Treaty of Canandaigua

was negotiated reinforces the natural reading of its text.

The 1794 Treaty was the third in a series of treaties over ten

years (1784, 1789, and 1794) in which “the National Govern-

ment promised that the Oneidas would be secure” in the

possession of their lands. Oneida I], 470 U.S. at 231. The

1794 Treaty is thus naturally read in context as providing a

“reaffirm[ation]” of the promise first made by the United

States in 1784. /bid.

2. In New York Indians I, this Court addressed the

status of lands that Article 3 of the 1794 Treaty “acknowl-

edge(d) * * * to be the property of the Seneca Nation.”

Pet. App. 142a. In invalidating the State of New York’s at-

tempt to tax Seneca lands protected by that Treaty, the

Court characterized the tax as “a direct interference” by the

15

State “with these ancient possessions and occupations, se-

cured by the most sacred of obligations of the Federal gov-

ernment.” 72 U.S. (5 Wall.) at 768. The Court traced those

“sacred obligations” directly to the provisions of the Treaty

of-Canandaigua that secured the Senecas’ “free use and en-

joyment” of the reservations and their property rights in

them. /bid.; see id. at 766-767; Oneida I, 414 U.S. at 671-672.

Those provisions, the Court stressed, are “guarantees given

by the United States, and which her faith is pledged to

uphold.” New York Indians I, 72 U.S. (5 Wall.) at 768. The

Court further held that, under the 1794 Treaty, the Seneca

Nation possessed an “indefeasible title to the reservations

that may extend from generation to generation,” which title

“will cease only by dissolution of the tribe, or their consent

to sell to the party possessed of the right of pre-emption

***~ and this with the consent of the [federal] government.”

Id. at 771."

No plausible basis exists for construing the Treaty of

Canandaigua to deny the Oneida Nation the federal protec-

* Petitioner suggests (Br. 27)—in an argument not presented to the

courts below—that the treaty language pledging that the 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. 141a), effec-

tively authorized the State of New York to acquire the tribal lands with-

out federal approval. Far from constituting an implied repeal of the Trade

and Intercourse Act, however, that language simply reiterated the federal

government’s pledge that nothing would disturb the Indians’ right to

occupy their lands unless and until the Indians decided to sell them to a

buyer having the “right to purchase.” That category of potential buyers

would be limited to those who (1) owned the “right of preemption” (which,

with respect to the Oneidas, was the State of New York) and (2) had com-

plied with the requirements of the Trade and Intercourse Act. See New

York Indians I, 72 U.S. (5 Wall.) at 771. Petitioner's misreading of the

treaty language may stem from its erroneous understanding (see Br. 2s-

29) that the State’s “right of preemption” included the authority to extin-

guish Indian title. In fact, although the owner of the “right of preemption”

had the exclusive right to purchase land from the Indians if and when

Indian title was extinguished, the power to extinguish Indian title was

vested exclusively in the United States. See Oneida Indian Nation v.

New York, 860 F.2d 1145, 1150 (2d Cir. 1988); Oneida 1, 414 U.S. at 670.

16

tion (including immunity from state and local taxation) of its

reserved lands that the Treaty conferred upon the Senecas.

The guarantees made to the Oneidas in Article 2, and those

given to the Senecas in Article 3, were framed in essentially

identical language. Compare Pet. App. 141a, with id. at 1422.

Article 4 of the Treaty, moreover, expressly linked the pro-

mises made by the United States to the Oneidas, Onondagas,

Cayugas, and Senecas, and it recorded equivalent conces-

sions made by all four Tribes as a group. See id. at 142a-

143a. This Court's holding in New York Indians | that the

Treaty of Canandaigua barred state taxation of reserved

Seneca lands therefore makes clear that the parcels at issue

in this case were likewise subject to federal protection, and

thus immune from state and local taxation, at the time of

their sale in 1805 and 1807.’

Il. THE 1838 TREATY OF BUFFALO CREEK DID NOT

DISESTABLISH THE ONEIDA NATION'S NEW

YORK RESERVATION OR ABROGATE THE TAX

IMMUNITY FOR THE NATION’S LANDS

Although reservation land is generally immune from state

and loca] taxation, Congress may abrogate that immunity or

revoke the land's reservation status. See Cass County, 524

U.S. at 110-111. Congress will not be found to have author-

ized taxation of reservation land, however, “unless it has

‘made its intention to do so unmistakably clear.’” /d. at 110

(quoting County of Yakima, 502 U.S. at 258). Similarly, dis-

’ Because the parcels at issue here were initially acquired from the

Oneidas in violation of the Trade and Intercourse Acts, petitioner's reli-

ance (Br. 30, 41) on Cass County is misplaced. In Cass County, this Court

held that tracts sold and later reacquired by an Indian Tribe were subject

to local taxation because Congress had by statute “removed that reser-

vation land from federal protection and made it fully alienable.” 524 U.S.

at 113. The Court relied on prior decisions holding that, when Congress

renders particular Indian lands freely alienable, its action wiil ordinarily

be construed to eliminate any federal barrier to state and local taxation.

Id. at 110-114. Here, by contrast, Congress never authorized—indeed it

prohibited—the alienation of the relevant parcels.

17

establishment of a reservation requires “clear and plain” evi-

dence of congressional intent. South Dakota v. Yankton

Siour Tribe, 522 U.S. 329, 343 (1998); see Solem v. Bartlett,

465 U.S. 463, 470 (1984) (“Once a block of land is set aside for

an Indian Reservation and no matter what happens to the

title of individual plots within the area, the entire block re-

tains its reservation status until Congress explicitly indi-

cates otherwise.”). Contrary to petitioner’s contention (Br.

31-40), the 1838 Treaty of Buffalo Creek did not abrogate the

tax immunity for Oneida lands or the federal reservation

secured by the 1794 Treaty of Canandaigua.’

A. The Text Of The Treaty Of Buffalo Creek Does Not

Effect A Relinquishment Of The Oneidas’ New York

Lands, An Abrogation Of The Tax Immunity Of

Those Lands, Or A Disestablishment Of The Oneidas’

New York Reservation

1. The Treaty of Buffalo Creek, concluded on January 15,

1838, was negotiated by Commissioner Ransom H. Gillet on

behalf of the United States with “the several tribes of New

York Indians,” including the Oneidas. See Pet. App. 147a.

The 1838 Treaty was intended to redress the difficulties that

the New York Indians had experienced in removing to lands

previously set aside for them in Wisconsin, see Articles of

Agreement, Feb. 8, 1831, U.S.-Menomonee Tribe, 7 Stat. 342;

Pet. App. 10a n.8, 147a-148a, and it recognized that “many

+ In its amicus brief in Oneida I], the United States articulated a pos-

sible argument that, by signing the Treaty of Buffalo Creek, the Oneidas

had relinquished their claim to a New York reservation. That brief stated,

however, that the United States had not “reached a concluded view on the

relinquishment question,” and noted that the issue “would require further

examination of the circumstances surrounding the Treaty of Buffalo Creek

and subsequent events, including the Indians’ understanding of the trans-

action.” Nos, 83-1065 & 83-1240 U.S. Br. at 33. Upon further considera-

tion of the historical record, including the written assurances made to the

New York Oneidas by Commissioner Gillet (see pp. 20-22, infra), the

United States has determined that the Treaty did not effect a disestablish-

ment of the New York reservation or a relinquishment by the Oneida

Nation of its claims to New York lands.

18

who were in favour of emigration, preferred to remove at

once to the Indian territory,” id. at 148a.

In Article 1 of the 1838 Treaty, the New York Indians

“cede[d] and relinquish{ed] to the United States all their

right, title and interest to the lands secured to them at

Green Bay by the Menomonie treaty of 1831,” with the ex-

ception of a specified tract at Green Bay on which some of

the New York Indians then resided. Pet. App. 149a. In

Article 2, the United States agreed, “{i]n consideration of the

above cession and relinquishment,” to “set apart” 1,824,000

acres of lands in Kansas “as a permanent home for all the

New York Indians, now residing in the State of New York,

or in Wisconsin, or elsewhere in the United States, who have

no permanent homes.” J/bid. Articles 1 and 2 of the 1838

Treaty “summarize|d] the central bargain between the New

York Indians and the federal government: the cession of the

New York Indians’ Wisconsin lands in exchange for reserva-

tion land in Kansas.” /d. at 33a-34a. Those Articles did not

refer to any cession of land in New York, and they provide

no basis for concluding that the Treaty abrogated the tax

immunity for the New York lands under the Treaty of Ca-

nandaigua or disestablished the reservation secured by that

Treaty.

2. In arguing that the 1838 Treaty disestablished the

Oneidas’ New York reservation, petitioner principally relies

on Article 13 of the Treaty, which set forth the “special pro-

visions for the Oneidas residing in the State of New York.”

Pet. App. 155a. Under Article 13, the United States pro-

mised to make cash payments to specified Oneida leaders for

their expenses in obtaining the Wisconsin lands, and the

Oneidas “agree|d] to remove to their new homes in the In-

dian territory, as soon as they can make satisfactory ar-

rangements with the Governor of the State of New York for

the purchase of their lands at Oneida.” /bid. By its terms,

the Oneidas’ obligation to remove to the Indian Territory

was thus made contingent on their ability to negotiate mutu-

ally acceptable terms with the State for the sale of their New

19

York lands—a contingency that never occurred because the

Oneidas in New York refused to relocate. Pet. App. 13a;

New York Indians II, 170 U.S. at 8-10. Given the inherent

uncertainty of such a bargaining process, and in the absen.e

of any express reference to the Treaty of Canandaigua, Arti-

cle 13 does not provide the requisite “clear and plain” evi-

dence (Yankton Sioux Tribe, 522 U.S. at 343) of congres-

sional intent to disestablish the pre-existing reservation.’

Indeed, Article 13 squarely refutes any suggestion that the

Treaty of Buffalo Creek effected an immediate cession of the

Oneidas’ New York lands, since Article 13 expressly contem-

plated the possibility of future transactions in which the

Tribe would sell that property to the State.

3. Petitioner is also wrong in arguing (Br. 37) that allow-

ing the Oneida Nation to retain its New York reservation

would have been logically inconsistent with the 1838 Treaty’s

provision of Kansas lands to the Oneidas. Taken to its logical

conclusion, that argument would suggest that the prior

treaty with the Menomonees, under which the United States

acquired Wisconsin lands “as a home to the several tribes of

the New York Indians” (7 Stat. 343), implicitly divested the

Oneida Nation of its New York property. The Treaty of

Buffalo Creek, however, reflected a clear understanding that

the Oneidas retained their New York lands even after the

treaty with the Menomonees, since Article 13 of the 1838

Treaty referred to the possible future sale of those lands to

the State. If the 1831 cession of Wisconsin lands to the

Oneidas did not logically preclude the Nation’s continued

ownership of New York lands, there is no reason (absent a

clear expression of such intent in the 1838 Treaty of Buffalo

® Petitioner does not argue that the Treaty of Buffalo Creek ratified

the purchases of other lands from the Oneidas that had been made prior to

1838 without federal approval, and that Treaty does not in any event

satisfy the test for ratification set forth in Oneida 11, 470 U.S. at 246-248.

20

Creek) to ascribe more sweeping consequences to the sub-

sequent exchange of Kansas lands for Wisconsin property.’

B. The Negotiating History Of The Treaty Of Buffalo

Creek Confirms That The Treaty Did Not Abrogate

Protections For The Oneidas’ New York Lands

In June 1838, the Senate amended the Treaty of Buffalo

Creek and gave its consent to the Treaty as amended, sub-

ject to the condition that “the treaty shall have no force or

effect whatever * * * until the same, with the amendments

* Petitioner's reliance (Br. 38-39) on United States v. Santa Fe Pacific

Railroad, 314 U.S. 339 (1941), is misplaced. In Santa Fe Pacific, this

Court held that, in light of the prior course of dealings between the Wala-

pais Indians and the United States (see id. at 356-358), the Walapais’ ac-

ceptance of a new federal reservation “must be regarded in law as the

equivalent of a release of any tribal rights which they may have had in

lands outside the reservation.” Jd. at 358. The Court based that holding,

however, on the “historical setting” in which the reservation was created;

it did not announce a per se rule that a Tribe's acceptance of a federal

reservation invariably operates as a renunciation of tribal claims to other

lands. Jbid.; see id. at 357-35x.

The circumstances surrounding the negotiation and ratification of the

Treaty of Buffalo Creek differed substantially from those that preceded

the creation of the Walapais’ reservation. First, the Treaty of Buffalo

Creek specifically defined the nature of the Tribe’s obligations: Article 1

provided for the cession of the Oneidas’ Wisconsin lands, and Article 13

made clear that the Nation would retain its New York lands, unless and

until those lands were sold to the State, even after the Treaty took effect.

Second, when the Treaty of Buffalo Creek was ratified, the Oneidas al-

ready possessed the federal reservation secured by the Treaty of Canan-

daigua. The Walapais, by contrast, had no pre-existing reservation, but

simply claimed aboriginal title to certain lands. See Santa Fe Pac., 314

U.S. at 344-345: cf. Tee-Hit-Ton Indians v. United States, 348 U.S. 272,

277-282 (1955) (discussing difference in degree of legal protection for “rec-

ognized” title, which constitutes a property interest cognizable under the

Fifth Amendment, and aboriginal title, which may be extinguished by

Congress at will and without compensation). Third, the negotiating his-

tory of the Treaty of Buffalo Creek provides weighty contemporaneous

evidence—evidence having no analogue in Santa Fe Pacific—that the

Treaty was not intended to effect a disestablishment of the Oneidas’ New

York reservation or a relinquishment of their treaty-protected New York

lands. See pp. 20-22, infra.

P

€

if

f

‘*

21

herein proposed, is submitted and fully and fairly explained

by a commissioner of the United States to each of [the signa-

tory] tribes or bands, separately assembled in council, and

they have given their free and voluntary assent thereto.”

New York Indians II, 170 U.S. at 21-22. Pursuant to that

directive, Commissioner Gillet met with the Oneidas on

August 9, 1838. Pet. App. 35a-36a, 173a; Resp. Br. in Opp.

App. 6a-lla. At that time, Gillet provided the Oneidas and

their attorney with a written “assurance” to quell “their

fears that they might be compelled to remove, even without

selling their land to the State.” Jd. at 7a.

That assurance stated that “the treaty was not, & is not

intended to compel the Oneidas to remove from their reser-

vations in the state of New York,” and that the Oneidas

could “choose to * * * remain where they are forever.”

Resp. Br. in Opp. App. 10a. The document memorializing the

Oneidas’ assent to the 1838 Treaty referred to Gillet’s decla-

ration and included Gillet’s affirmation that the assent was

voluntary. Pet. App. 35a n.18, 173a. Petitioner’s interpreta-

tion of the 1838 Treaty as implicitly disestablishing the Onei-

das’ New York reservation, and extinguishing all federal

protection for the Nation’s New York lands, cannot be recon-

ciled with the assurances through which the Oneidas’ assent

to the Treaty was obtained.

Petitioner contends (Br. 36) that the court of appeals

erred in relying on the Gillet declaration because it was

never made part of the Treaty itself. That argument is mis-

guided. This Court “interpret[s] treaties to give effect to the

terms as the Indians themselves would have understood

them,” Minnesota v. Mille Lacs Band of Chippewa Indians,

526 U.S. 172, 196 (1999), and the Gillet declaration provides

powerful evidence of the Oneidas’ understanding at the time

they assented to the Treaty. It is also appropriate to assume

that the contemporaneous explanation given by the federal

commissioner accurately reflected the President’s intent in

making the Treaty and the Senate’s intent in approving it—

particularly in light of the Senate’s express directive that

»)

the treaty would take effect only after it had been “fully and

fairly explained by a commissioner of the United States” and

the signatory Tribes had given their “free and voluntary

assent thereto.” New York Indians I], 170 U.S. at 21-22.

C. This Court's Decision In New York Indians II

Does Not Support Petitioner's Contention That

The Treaty Of Buffalo Creek Disestablished The

Oneidas’ New York Reservation

In New York Indians II, this Court held that the New

York Indians (including the Oneidas) were entitled to com-

pensation for the government's disposal of the lands set

aside for them in Kansas. 170 U.S. at 36. Contrary to peti-

tioner’s contention (e.g., Br. 33), the fact that the Oneidas

residing in New York (and their descendants) shared in that

monetary recovery does not suggest that the 1838 Treaty

divested the Nation of its New York lands or abrogated

federal protections for those lands. As the Court in New

York Indians I] explained, the Tribes that entered into the

Treaty of Buffalo Creek “were possessed of some sort of title

or interest in a large quantity of lands in Wisconsin, which

the government was desirous of acquiring, and for which it

was willing to make a large cession in the [Indian Terri-

tory].” Jd. at 14. That the Indians who possessed a “title or

* Although the Gillet report was not prepared until after the Senate

had given its consent to the Treaty of Buffalo Creek on June 11, 1838, the

report was transmitted to the Senate, and in January 1840 it was ordered

to be printed together with the Treaty and other accompanying docu-

ments. See Resp. Br. in Opp. App. 5a. Subsequently, on March 25, 1840,

the Senate passed a resolution stating that the Treaty of Buffalo Creek, as

amended on June 11, 1838, had “been satisfactorily acceded to and ap-

proved of by [the signatory} tribes,” and that the President was therefore

“authorized to proclaim the treaty as in full force and operation.” C.A.

App. 1579; see New York Indians 11, 170 U.S. at 23. The passage of that

resolution indicates that the Senate approved of the assurances previously

given to the Oneidas by Commissioner Gillet, since the earlier-stated

condition precedent to the Treaty’s taking effect—i.e., that the Tribes

must assent to the Treaty after its terms had been “fully and fairly

explained”—would not have been satisfied if Commissioner Gillet’s

explanation of the Treaty’s terms had been substantially inaccurate.

eee eee eee ——-—r— Oe tC eC ——-—™

23

interest” in the Wisconsin lands included those who con-

tinued to reside in New York as of 1838 is clear from the

Preamble to the 1838 Treaty, which stated that “various

considerations have prevented those still residing in New

York from removing to Green Bay, * * * [aJnd they

therefore applied to the President to take their Green Bay

lands.” Pet. App. 148a. The New York Oneidas’ cession of

their interest in most of the Tribe’s Wisconsin tracts in

exchange for the Kansas lands provided a fully sufficient

basis for their receipt of damages for the government's

subsequent sale of the Kansas property.

The Court in New York Indians I] did state that the

“main inducement” for the United States to enter into the

_reaty of Buffalo Creek “[p)robably” was the “agreement of

the Indians to remove beyond the Mississippi.” 170 U.S. at

15. But the exchange of Wisconsin lands for Kansas lands

itself promoted that objective. And the fact that removal of

the Indians from their eastern lands may have been the gov-

ernment’s principal objective does not mean that the Treaty

guaranteed that result as a matter of law. Cf. Rodriguez v.

United States, 480 U.S. 522, 526 (1987) (per curiam) (“Decid-

ing what competing values will or » |] not be sacrificed to the

achievement of a particular objective is the very essence of

legislative choice—and it frustrates rather than effectuates

legislative intent simplistically to assume that whatever

furthers the statute’s primary objective must be the law.”).

Particularly in light of the facts that the New York Oneidas’

obligation to remove was made contingent on their reaching

“satisfactory arrangements” with the State for the sale of

their New York lands (Pet. App. 155a), and that the Tribe’s

assent to the 1838 Treaty was premised on assurances that

its members would not be compelled to remove, the Treaty

does not provide “clear and plain” (Yankton Sioux, 522 U.S.

at £43) evidence of congressional intent to disestablish the

federal reservation secured by the 1794 Treaty of Canan-

24

daigua, or to abrogate the immunity from taxation under

that Treaty for lands occupied by the Oneidas.”

Ill. THE ONEIDA INDIAN NATION OF NEW YORE IS

A SUCCESSOR-IN-INTEREST TO THE HISTORIC

ONEIDA NATION AND MAY ASSERT ITS STATU-

TORY AND TREATY RIGHTS

The OIN is recognized by the Executive Branch as an

Indian Tribe and as a political successor-in-interest to the

historic Oneida Nation. See 68 Fed. Reg. 68,182 (2003); J.A.

207-208 (1976 affidavit from Interior Department official).

Petitioner nevertheless contends (Br. 40) that the OIN can-

not claim an exemption from state and local taxation of the

parcels it recently reacquired because the Oneidas allegedly

ceased to exist as a Tribe for some unspecified period during

the late nineteenth and early twentieth centuries. That

argument lacks merit.

* Essentially for the foregoing reasons, pet’tioner’s reliance (Br. 17-19,

24-25) on Alaska v. Native Village of Venetie Tribal Government, 522 US.

520 (1998), is misplaced. In that case the Court considered whether land

owned in fee by the Native Village of Venetie “falls within the ‘dependent

Indian communities’ prong of the {Indian country} statute, [18 U.S.C.)

$ 1151(b).” Jd. at 527. In concluding that the land at issue did not fall into

that “limited category,” the Court noted that Congress had expressly “re-

voked the existing Venetie Reservation, and indeed revoked all existing

reservations in Alaska * * * save one.” Jd. at 532. Because Congress

has not expressly revoked the Oneida reservation secured by the Treaty

of Canandaigua, the Court's decision in Vewetie has little relevance here.

See Pet. App. 24a (explaining that “reservation land” is “by its nature

* * * set aside by Congress for Indian use under federal supervision,”

and thus qualifies as “Indian country” under Venetie), ef. 1 U.S.C. 1151(a)

(defining the term “Indian country” to include, without qualification, “all

land within the limits of any Indian reservation under the jurisdiction of

the United States Government”); Venetie, 522 U.S. at 528 n.3 (noting that,

before the enactment of Section 1151, this Court “had also held, not sur-

prisingly, that Indian reservations were Indian country”). Moreover,

quite aside from the reservation status of the land at issue in this case, the

Treaty of Canandaigua independently secures a tax immunity for lands

owned by the Oneidas through its guarantee of the Oneidas’ “free use and

enjoyment” of such lands.

25

A. This Court Recognized In Oneida I] That The OIN Is

A Successor-In-Interest To The Oneida Nation And

Is Entitled To Assert The Rights Of Its Predecessor

In Oneida II, this Court recognized the OIN, the Oneida

Indian Nation of Wisconsin, and the Oneida of the Thames

Band Council to be “the direct descendants of the Oneida

Indian Nation, one of the six nations of the Iroquois.” 470

U.S. at 230." Recognition of the OIN as the Oneida Nation's

successor Tribe was logically necessary to the Court’s hold-

ing (see id. at 233-236) that the OIN could assert a current

right of occupancy to lands wrongfully acquired from the

Oneida Nation in 1795. Petitioner makes no effort to recon-

cile its claim of tribal discontinuity with the outcome and

analysis of Oneida I].

B. Decisions Concerning The Recognition Of Indian

Tribes Are Entrusted To The Executive Branch,

Which Has Recognized The OIN To Be A Successor-

In-Interest To The Oneida Nation

1. “(T)he Constitution grants Congress broad general

powers to legislate in respect to Indian tribes, powers that

{the Court has] consistently described as ‘plenary and exclu-

sive.” United States v. Lara, 124 S. Ct. 1628, 1633 (2004).

In particular, this Court has long held that tribal status de-

terminations are the province of the political Branches. See

United States v. Holliday, 70 U.S. (3 Wall.) 407, 419 (1866)

. (“If by [the political Branches] those Indians are recognized

as a tribe, this court must do the same.”); United States v.

Sandoval, 231 U.S. 28, 46 (1913) (Although Congress may

not “bring a community or body of people within the range of

this power by arbitrarily calling them an Indian tribe, * * *

% The other courts that have considered the question have uniformly

reached the same result. See, ¢e.g., Oneida Indian Nation v. United States,

26 Ind. Cl. Comm. 138, 149 (1971), aff'd, 201 Ct. Cl. 546 (1973); Oneida

Indian Nation v. County of Oneida, 434 F. Supp. 527, 532-533, 538, 540

(N.D.N.Y. 1977); Oneida Indian Nation v. County of Oneida, 719 F.2d

525, 527-528, 538-539 (2d Cir. 1983); Oneida Indian Nation v. New York,

194 F. Supp. 2d 104, 118-129 (N.D.N.Y. 2002).

26

in respect of distinctly Indian communities the questions

whether, to what extent, and for what time they shall be

recognized and dealt with as dependent tribes requiring the

guardianship and protection of the United States are to be

determined by Congress, and not by the courts.”); see also

Miami Nation of Indians of Indiana, Inc. v. United States

Dep't of the Interior, 255 F 3d 342, 347-349 (7th Cir. 2001); ef.

Clark v. Allen, 331 U.S. 508, 514 (1947) (“[T]he question

whether [Germany was] in a position to perform its treaty

obligations [after World War II] is essentially 4 political

question.”). Congress has assigned the authority to govern

Indian relations, including the responsibility to resolve ques-

tions of tribal existence and recognition, to the Department

of the Interior."

In 1979, the Department of the Interior published an offi-

cial list of those entities—including the O1N—already ac-

knowledged to exist as “Indian tribal entities that have a

government-to-government relationship with the United

States.” 44 Fed. Reg. 7236; see Federally Recognized Indian

Tribe List Act of 1994, Pub. L. No. 103-454, 108 Stat. 4791

(codified in part at 25 U.S.C. 479a to 479a-1) (confirming

Secretary's authority and responsibility for identifying In-

dian tribes). That action reflected the judgment of the

Executive Branch agency charged with responsibility for

Indian affairs that the Oneidas have enjoyed a sufficiently

continuous existence to be (a) capable of exercising the

” Recognition of Indian Tribes was originally accomplished through

the negotiation and ratification of formal treaties pursuant to Article II,

Section 2, Clause 2 of the Constitution. See Golden Hill Paugussett Tribe

of Indians v. Weicker, 39 F 3d 51, 57 (2d Cir. 1994). “When formal treaty

making was abandoned [in 1871, see 25 U.S.C. 71}, the federal government

continued to make agreements with Indian tribes, similar to treaties, but

requiring approval by both Houses of Congress, and government policy

with respect to Indians was expressed through legislation and executive

orders.” Jbid. The Department of the Interior is vested by statute with

the responsibility to manage Indian affairs, see, e.g., 25 U.S.C. 1,2 9, 461

et seqg., which necessarily includes the responsibility to determine which

Tribes should be federally recognized.

27

sovereignty possessed by the historic Oneida Nation before

the time of European settlement, see United States v.

Wheeler, 435 U.S. 313, 322-323 (1978); and (b) entitled to

vindicate the Oneida Nation’s rights under federal statutes

and treaties. See J.A. 207-208 (1976 affidavit by Interior

Department official describing the OIN as “one of the Indian

tribes which entered into and signed” the Treaties of Fort

Harmar and Canandaigua).'’ Given the preeminent role of

the political Branches in matters of this character, the De-

partment’s formal recognition of the OIN as an Indian Tribe

and as a successor-in-interest to the Oneida Nation provides

a sufficient basis for rejecting petitioner’s claim of tribal dis-

continuity.

2. Even if some judicial review of that agency deter-

mination were appropriate, the scope of the inquiry would be

highly limited and deferential. A court could not (as the

dissenting judge in the court of appeals appeared to believe,

see Pet. App. 56a-60a) appropriately conduct a factual in-

quiry into whether the Oneidas’ past activities were such

that the political Branches ought to have withdrawn recogni-

tion of the Tribe at some earlier point in time. Rather, the

only question that is even arguably appropriate for judicial

resolution is whether the political Branches actually ter-

minated their recognition of the Tribe.

'! The Interior Department has promulgated regulations governing

recognition of groups not already acknowledged by the United States as

Tribes, and those regulations have always included the requirement of

continuous tribal existence. See 43 Fed. Reg. 39,361 (1978), revised 59

Fed. Reg. 9280 (1994) (codified at 25 C.F.R. Pt. 83). Petitioner suggests

(Br. 41) that the OIN’s inclusion on the list of federally-recognized Tribes

signifies nothing more than eligibility for federal benefits. That is in-

correct. The list serves to identify those Indian Tribes that are sovereign

entities in a legal and political sense, i.e., “domestic dependent nations,”

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1881), capable of exer-

cising certain attributes of their original sovereignty. See 25 U.S.C.

479a(2); H.R. Rep. No. 781, 103d Cong., 2d Sess. 2 (1994) (federal “recogni-

tion” confirms that the Tribe is a “domestic dependent nation” capable of a

“government-to-government relationship” with the United States); 25

C.F .R. 83.2.

2s

The relevant course of events refutes the suggestion that

such official withdrawal of recognition ever occurred, and

demonstrates that the United States continued to deal with

the Oneidas as a Tribe during the late nineteenth and early

twentieth centuries. During that period, for example, the

United States continued to honor its obligation under Article

6 of the 1794 Treaty of Canandaigua (Pet. App. 148a) to pay

annuities and deliver “treaty cloth” to the Oneida Nation.

See United States v. Boylan, 256 F. 468, 487 (N.D.N.Y. 1919)

(“[T}he United States gover. ment, under a treaty with the

Oneida Indians, is paying to the remnants of that tribe each

year several thousand dollars worth of goods.”), aff'd, 265 F.

165 (2d Cir. 1920); id. at 489-490 (explaining that the pay-

ment obligation arose under the Treaty of Canandaigua).

The Boylan litigation arose out of an ejectment action,

brought by the United States in its trust capacity on behalf

ef the Oneidas, against private parties who had claimed title

to a 32-acre tract of land within the boundaries of the reser-

vation secured by the Treaty of Canandaigua. The district

court observcd that “(t]he United States has steadily and

uniformly asserted its jurisdiction over the Indians of the

‘Six Nations, which * * * included the Oneida Indians and

other New York tribes.” Boylan, 256 F. at 479. The court

held that lawful possession of the disputed lands should be

restored to the Oneidas, explaining that, as of 1906,

the Oneida Reservation still existed, although reduced in

area, and what remained was peopled by Indians, quite a

number of whom made their home on the premises in

question; most of them coming and going, it is true, but

this was their home. The title had descended to them

from those who occupied the lands when Columbus dis-

covered America, and had never gone out of them.

Id. at 481.

The court of appeals affirmed, agreeing with the district

court that “the United States and the remaining Indians of

the tribe of the Oneidas still maintain and occupy toward

Or

,|

29

each other the relation of guardian and ward.” United States

v. Boylan, 265 F. 165, 174 (2d Cir. 1920); see id. at 171

(holding that the United States was authorized to file the

ejectment action on the Oneidas’ behalf because the Oneidas

“exist as a separate band or tribe, and therefore as a sepa-

rate nation”). Both the position taken by the United States

in Boylan, and the disposition of the case by the district

court and court of appeals, refute petitioner's contention that

federal recognition of the Oneidas as a Tribe was withdrawn

during the late nineteenth or early twentieth century.”

In disputing the continuity of the Oneidas’ tribal exis-

tence, petitioner principally relies (Br. 43-45) on selected

statements from five individual reports filed by officials of

the Department of the Interior between 1891 and 1906, dur-

ing the assimilation period. None of these statements, how-

ever, can plausibly be characterized as a formal determi-

nation by the United States that the Oneidas’ legal and po-

litical status as a Tribe had been extinguished or aban-

doned."’ Even the selected reports on which petitioner relies

2 Unlike the lands involved in Boylan, the parcels involved in the

instant case have been occupied by Oneida Indians for only a small portion

of this country’s history. Petitioner's principal legal arguments suggest,

however, that local governments may now tax even those lands (like the

Boylan tract) that have remained continuously or virtually continuously in

the Oneidas’ possession. That result would appear to follow logically from

acceptance of petitioner’s contention that (1) the 300,000-acre parcel

reserved in the Treaty of Fort Schuyler was never placed under federal

protection; (2) any federal reservation that the Oneidas previously pos-

sessed was disestablished by the Treaty of Buffalo Creek; or (3) the Tribe

ceased to exist, and Oneida lands thereby lost their “Indian country”

status, at some point in the late nineteenth or earlier twentieth century.

'S The Commissioner of Indian Affairs’ assertion (C.A. App. 1229) that

the Oneidas in 1891 had no “tribal relations” might indicate that there

were “({f)luctuations in tribal activity during various years.” See 25 C.F.R.

83.6(e). But such fluctuations are not uncommon in this Nation’s history,

and they are insufficient to demonstrate that a Tribe's existence or its

relationship with the United States has legally been extinguished. See,

e.g., ibid. (Interior Department regulation explains that a Tribe seeking

initial recognition must demonstrate “politica! influence or authority

* * * ona substantially continuous basis, but this demonstration does not

30

contain references to the Oneidas’ continued tribal exis-

tence."’ The vast majority of annual reports filed by the

Commissioner of Indian Affairs from 1880 to 1915 provide

official tribal population statistics for the Oneidas, and most

make reference to either the Oneida “reservation” or “re-

serve” in New York.” Petitioner's evidence therefore pro-

vides no basis for rejecting the Executive Branch’s determi-

nation that the Oneidas have existed continuously as a Tribe

through this country's history, and that the OIN is entitled

to assert the rights of its predecessor the Oneida Nation.

CONCLUSION

The judgment of the court of appeals should be affirmed.

Respectfully submitted.

-

require meeting these criteria at every point in time”); United States v.

John, 437 U.S. 634, 652-653 (1978); Bryan v. Itasca County, 426 U.S. 373,

389 (1976); United States v. Washington, 641 F.2d 1368, 1373 (9th Cir.

1981) (noting that “|fjederal policy has sometimes favored tribal autonomy

and sometimes sought to destroy it,” and that “|a] degree of assimilation is

inevitable under these circumstances and does not entail the abandonment

of distinct Indian communities”).

'4 The 1891 report (at 312) lists the Oneidas as one of the six Tribes

under the authority of the New York Indian agency. The 1893 report (at

700, 714) states that 142 Oneida Indians reside on the “Oneida Reserve,”

and it refers to that “Reserve” in two separate tribal statistical tables.

The 1900 (at 610, 646) and 1901 (at 696, 716) reports state that 160 and 144

Oneida Indians, respectively, reside on the “Oneida Reserve,” which is de-

scribed as containing 365 acres. The 1906 report, in addition to providing a

tribal census (at 286, 482), specifically refers (at 461) to an Oneida reserva-

tion of 350 acres as guaranteed by the Treaty of Canandaigua. By letter

dated September 27, 2004, respondents have requested permission to

lodge those (and other) Commissioner’s reports with this Court.

1° With only one exception, every annual report from 1880 to 1915 pro-

vides a census for the Oneidas living in New York. Most of those reports

also provide acreage statistics for the Oneida “reserve” (consistently

recorded as containing 350 acres after 1906) and describe the distribution

of annuities to the Oneidas and the other Six Nations.

SEPTEMBER 2004

31

PAUL D. CLEMENT

Acting Solicitor General

THOMAS L. SANSONETTI

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY BOSSERT CLARK

Deputy Assistant Attorney

General

MALCOLM L. STEWART

Assistant to the Solicitor

General

WILLIAM LAZARUS

DAVID C. SHILTON

ETHAN G. SHENKMAN

Attorneys