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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 2005
- **Citation:** 544 U.S. 197

## Text

Supreme Court, US |

FILED

|

; 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) 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0725%3A13. Public record. Not legal advice.