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

wy \

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No. 03-855

In The

Supreme Court of the Gnit

¢

CITY OF SHERRILL, NEW YORK,

Petitioner,

v.

ONEIDA INDIAN NATION OF NEW YORK,

RAY HALBRITTER, KELLER GEORGE, CHUCK

FOUGNIER, MARILYN JOHN, CLINT HILL, DALE

ROOD, DICK LYNCH, KEN PHILLIPS, BEULAH

GREEN, BRIAN PATTERSON, and IVA ROGERS,

Respondents.

+

On Writ Of Certiorari To The United States

Court Of Appeals For The Second Circuit

.

BRIEF OF AMICI CURIAE CAYUGA NATION

OF NEW YORK, MOHAWK COUNCIL OF

AKWESASNE, MOHAWK NATION, ONEIDA TRIBE

OF INDIANS OF WISCONSIN, ONEIDA OF THE

THAMES, ONONDAGA NATION, ST. REGIS

MOHAWK TRIBE, SENECA NATION OF INDIANS,

AND TONAWANDA BAND OF SENECA INDIANS,

IN SUPPORT OF RESPONDENTS ONEIDA

INDIAN NATION OF NEW YORK, ET AL.

+

RAYMOND J. HESLIN ARLINDA F. LOCKLEAR,

MARTIN R. GOLD Esquire

SONNENSCHEIN NATH & Counsel of Record

ROSENTHALL LLP LAWRENCE S. ROBERTS

1221 Avenue of the Americas, 3809 Jefferson Pike

12th Floor Post Office Box 605

New York, New York 10021 Jefferson, Maryland 21755

(212) 768-6700 (301) 473-5160

Counsel for Amicus Counsel for Amicus

Cayuga Nation of Oneida Tribe of Indians

New York of Wisconsin

|Additional Counsel Listed On Inside Cover]

—

—

COCKLE LAW BRIEF PRINTING CO (800) 225-6964

OR CALL COLLECT (402) 342-2831

JAMES T. MEGGESTO

SONOSKY, CHAMBERS, SACHSE,

ENDRESON & PERRY, LLP

1425 K Street, N.W., Suite 600

Washington, D.C. 20005

(202) 682-0240

Counsel for Amicus

Mohawk Council

of Akwesasne

ROBERT T. COULTER

INDIAN LAW RESOURCE CENTER

602 N. Ewing Street

Helena, Montana 59601

406) 449-2006

and

CURTIS G. BERKEY

ALEXANDER, BERKEY,

WILLIAMS & WEATHERS LLP

2000 Center Street, Suite 308

Berkeley, California 94704

.510) 548-7070

Counsel for Amicus

Onondaga Nation

MARSHA K. SCHMIDT

HoBBS, STRAUS, DEAN

& WALKER, LLP

2120 L Street, N.W.. Suite 700

Washington, D.C. 20037

(202) 822-8282

Counsel for Amicus

St. Regis Mohawk Tribe

ALEXANDRA C. PAGE

INDIAN LAW RESOURCE

CENTER

601 E Street, S.E.

Washington, D.C. 20003

(202) 547-2800

Counsel for Amici

Mohawk Nation and

Tonawanda Band

of Seneca Indians

CAREY R. RAMOS

JACQUELINE P. RUBIN

CARRIE L. JABINSKY

PAUL, WEISS, RIFKIND,

WHARTON & GARRISON

1285 Avenue of the

Americas

New York, New York 10019

(212) 373-3000

Counsel for Amicus

Oneida of the Thames

JEANNE S. WHITEING

ToD SMITH

WHITEING & SMITH

1136 Pear! Street,

Suite 203

Boulder, Colorado 80302

(303) 444-2549

Counsel for Amicus

Seneca Nation of Indians

TABLE OF CONTENTS

sy Page

I iia ence tinesemtennennnnnes iii

EER, Eee 1

I i enaemannntninens 2

ETRE eee TE 13

SETI icsuinidncitnsncnsnpiesnnsensnonanneeennnensnesensecsnencceesesesecees 15

I. The Six Nations and successor tribes occupy

Indian country in New York State that is sub-

ject to federal treaty and statutory restraints

against extinguishment.........................cc0cceeeeees 15

A. The Treaty of Canandaigua confirmed fed-

eral Indian reservations for the tribal sig-

Tc tiarrememncuumenngeenennuennes 15

B. Federal common law and statutory re-

straints against alienation apply to the

“neida and other treaty confirmed reser-

I TT ee crsneentemmmanansesennanes 18

Il. The 1838 Buffalo Creek Treaty was not a

mandatory removal treaty and did not result

in removal of the New York Indians.................. 21

A. Mandatory removal was generally accom-

plished by extinguishment of title by the

is iticininrnieertcnnliemtnnenmienandenesn 22

B. Unlike mandatory removal treaties, the

Buffalo Creek Treaty did not compel re-

moval through extinguishment of title by

the United States and did not abolish the

reservations in New York.....................cccc0 24

1. The treaty was intended and under-

stood as setting aside lands in Kansas

for voluntary removal........................00+. 24

Conclusion

il

TABLE OF CONTENTS - Continued

Page

2. The treaty contemplated separate

transactions to extinguish title which

never occurred or were modified; as a

result, the New York Indians were

never removed and remain in New

Pe ei ciciiceitarsincnistlaninisisdeeniiasecsitniaiiniaiiiiiase

tte eee eee eee eee eee eee ee ee eee eee eee ee eee eee ee eee ee eee eee)

ill

TABLE OF AUTHORITIES

Page

FEDERAL AUTHORITY

CASES

Cayuga Indian Nation of New York. v. Pataki, No.

02-6111(L) (2d Cir., argued March 31, 2004).................. 1

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

ESTE TA Me Sateen aee ae nat Reed See a SNA 23

Emigrant Indians v. United States, 5 Ind. Cl.

I _ Roe ll

Federal Power Comm’n v. Tuscarora Indian Nation,

I 5, 8, 28

Fellows v. Blacksmith, 60 U.S. 366 (1856).....................06 28

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

modified on other grounds, 170 U.S. 614 (1898).....passim

Northwestern Bands of Shoshone Indians v. United

Sa, GS Ge Ge GED cnnecncersestoncsctesemmgenns 15

Oklahoma Tax Commission v. Chickasaw Nation,

Sy EE: aE OnE cihsinceeseihttaieeiinniietirieterinincinienaninaiteniatiniaiiiii 21

Oneida County v. Oneida Indian Nation of New York

(Oneida II), 270 U.S.226 (1985) ................ 1, 14, 17, 18, 19

Oneida Indian Nation v. County of Oneida (Oneida I),

DO 13, 16, 18, 19, 20

Oneida Indian Nation of New York v. County of

Oneida, 434 F. Supp. 527 (N.D.N.Y.), aff'd, 270

U.S. 226 (1985) .................. scoseserecscsecessecsesacerescessesesecsesees 1

Oneida Indian Nation of New York v. United

States, 37 Ind. Cl. Comm. 522 (1978)........................:0000 5

Oneida Indian Nation of New York v. United States,

43 Ind. Cl. Comma. 373 (1976).........0cccccesecesccosesscsess 13, 25

iv

TABLE OF AUTHORITIES -— Continued

Page

Oneida Indian Nation of New York v. State of New

Rt, 6 EE eenreer 1

Seneca Nation v. State of New York., 85-CV-0411

tt ERS eRe a ese Re Ee EEA ee Te 1

Seneca Nation v. State of New York, 2004 WL

ee Ce ey CR: Gh Bee ecccececccccvtntnsencccsnenensnessess 1

St. Regis Mohawk Tribe v. State of New York, 82-

CV-783, 82-CV-1114 & 89-CV-829 (N.D.N.Y.)........000..... 1

State of New York ex rel. Cutler v. Dibble, 6 U.S.

RR RS ere Sea RAN in One Oe OL 26, 28

The New York Indians, 72 U.S. 761 (1866)....................... 28

United States v. Forty Three Gallons of Whiskey, 93

| RSE ICES ECE ee aan cae ee ec 13

United States v. Shoshone Tribe, 304 U.S. 111

EERE AES os eee nee eo ee 15

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)....... 13, 23

STATUTES AND MISCELLANEOUS

I 21

Indian Trade and Intercourse Act, Act of July 22,

BE ET TE Nee Te 6

Act of March 30, 1802, 2 Stat. 390.000.0000. 19, 20

Indian Removal Act, Act of May 28, 1830, 4 Stat.

ESS Re oe PURE eee ON Met: RI Tas oe Ee 21

“8 Fed. Reg. 68180, 68182 (Dec. 5, 2003) .............0.00c0cccccee. 1

TABLE OF AUTHORITIES -— Continued

Page

United States Department of the Interior, Bureau

of Land Management, Cadastral Survey, Ameri-

can Indian Reservations and BIA Regional,

Agency and Field Offices map available at http://

www.blm.gov/cadastral/biamaps/biaoffices. htm ........... 17

LEGISLATIVE AUTHORITIES

H. Doc. No. 1590, 63rd Cong., 3rd Sess. (1915)................ 28

H.Rep. No. 227, 21st Cong., 1st Sess. (1830)...............0004. 23

Journals of the Continental Congress (Library of

I Gi iccnccsunseseniaiincentrnstcnangsinesivarienapetaenstinpesnssnnien 3,4

GD, BI, Sa CD cettncnnsntsnnssccsmmaresenmsesmemenisie 23

TREATIES

Agreement with the Seneca, September 15, 1797, 7

8 ER ATE eee 9

Treaty of Buffalo Creek, Treaty of January 15,

ey See Sie crntiesesensuvenntessnseementenniumsesesemintsenel passim

Treaty with the Cherokee, December 29, 1835, art.

hy Fs Gr icccesnncsnnniinnemtveidlnninmentianinneeions 24

Treaty with the Cherokee, July 8, 1817, art. 1, 7

I Sila ivitiitsisnssenansnntnieninninenidnnantaniteniiuiedamionttiiedpienens 22

Treaty with the Chickasaw, October 20, 1832, art. I,

OF es Sa isericshenssssitendenerneesteseeniuintiisitialtepialaeitaanaetiabiiatniielinianunene 24

Treaty with the Chippewa, September 26, 1833,

I, BR, Bees Gi icctncitercrninencnnctitintenimnnssiiaianingsinsicisnunten 24

Treaty with the Choctaw, September 27, 1830, art.

Sais, Ur ETI SII cicchtetsianetentatintninsdinenitlinialabinpainrthignationnaanmnaimeneeel 23

vi

TABLE OF AUTHORITIES — Continued

Page

Treaty with the Creeks, January 24, 1826, art. 2, 7

as Tel icerinneiiaicdehnditeaiiteannieabenieainabincsinesianicinindiiasinaianltaeistatiarsenaiats 22

Treaty with the Creeks, March 24, 1832, art. 1, 7

Sis eae hnitisinrnccniocenninntpenendbaddennieniuniesinesiimenannitainieeniiin 24

Treaty with the Delawares, October 3, 1818, art. 1,

SFU Sit eiciisteennssheniieisitinindepentennniadesiidasiiialicaentiiiteedimemanaaiens 22

Treaty with the Kickapoo, July 30, 1819, art. 1, 7

Sas Iaeat in bahciesitihitvicicatiitantnnitidiniiateiadielethiaatislcaasiiatleainiaeie 22

Treaty with the Menominee, February 8, 1831, 7

SETriEi Taal iicistirninersstisteasitinipdloacinietitiapdinntanaianainaiiniitesiiiatietiiniaatdiiteiiinamaiei 11

Treaty with the Potawatomi, February 11, 1837,

EE Seer ret Re 24

Treaty with the Seneca, May 20, 1842, 7 Stat. 586.... 12, 28

Treaty with the Seneca, Tonawanda Band, November

Be es MMI Sia icuinesechaeipaternesiiaapinidipesianmtalatiinianiisibitagnadite 12, 28

Treaty with the Seven Nations of Canada, May 31,

Ss Oe Mes i ibccrniniticticesteinitelanceicitdhsanicelalicaiinidatrgallieaiaeaiiaiiaaiaiaal 8

Treaty with the Six Nations (Fort Stanwix), Octo-

ee ees Is i eihetecicierriciviciicidciidiitintencinciaitigcipainiacuen 4

Treaty with the Six Nations (Fort Harmar), Janu-

gg er ea 5

Treaty with the Six Nations (Canandaigua), No-

vember 11, 1794, 7 Stat. 44................c.ccccscccccevsseeees passim

Treaty with the Winnebago, September 15, 1832,

OB RARITIES Prey See 23

Vii

TABLE OF AUTHORITIES — Continued

Page

STATE AUTHORITY

CASES

Andrews v. New York, 79 N.Y.S.2d 479 (N.Y. Ct. Cl.

EE ene ne eT er Hee Tere 17

Lyons v. Lyons, 149 Misc. 723 (Sup. Ct. Onondaga

IE EE rene ern pe are mR ET EN 17

People ex rel. Cusick v. Daly, 212 N.Y. 183 (1914)............ 17

Pierce v. State Tax Commission, 286 N.Y.S.2d 162 _

A A, EIDE Dib ccecensecensccnenssensecnscecssnsseneannmneesceen 17

STATUTES

Act of March 11, 1793, 1793 N.Y. Laws, ch. 51................... 8

Act of April 9, 1795, 1795 N.Y. Laws, ch. 70..........cccccccceees 8

BOOKS AND TREATISES

Felix S. Cohen, Handbook of Federal Indian Law

| TEE TERT eT NEE EE 2, 8, 12, 28

Barbara Graymont, The Iroquois in the American

Revolution (Syracuse U. Press, 1972) ...............cccc008 3,5

Henry Manley, The Treaty of Fort Stanwix, 1784

8 EM Tre awe ener eee ner ean 4

Frederick Houghton, “The History of the Buffalo

Creek Reservation,” in Frank H. Severance, ed.,

Publications of the Buffalo Historical Society, Vol.

EUT, TIsisiesdcesiiitimpnnasandnsiandiinibepndasiiummaumiainiianeiaieiaieses 27

Edward Phillips, Timothy Pickering at His Best:

Indian Commissioner, 1790-1794, CII Essex In-

stitute Historical Collections, No. 3 (1966)..................... 7

Vill

TABLE OF AUTHORITIES - Continued

Page

Francis Prucha, American Indian Policy in the

Formative Years: The Indian Trade and Inter-

course Acts, 1790-1834 (University of Nebraska

kh RERERERIS ai cee pA eae meron R ew rnen es 6, 22, 23

HISTORICAL DOCUMENTS

4 American State Papers, Indian Affairs, Vol. 1

PEENEITET eRe Rsar WE Mae Resto ont. cosars ane ane ene OER 6, 7

1935 Memorandum for Assistant Attorney General

Blair, Re: Onondaga Reservation.................ccceeeeeeeee 17

Articles of Agreement and Cession, art. Ist (April

24, 1802), reprinted in Territorial Papers, V................. 22

Brief of Instructions for Meeting with New York

Indians, National Archives Microfilm Collection,

DES34, reel GES, Travmes 40-4) ............ccccccccccccccccssccecees: 25

Letter of Secretary of War Calhoun to Jasper

Parrish, Sub-Agent, Six Nations, May 14, 1818,

W. Hemphill, ed., The Papers of John C. Cal-

houn, 1817-1818, Vol. IT (1967)...............cccceeeeeeeeees 11, 25

Memoria! of Oneida Indians to President of the

United States, National Archives RG279, Re-

cords of the Indian Claims Commission, Docket

No. 301, Box 2674, Clairnant's Exh. 2083.............00..0... 25

Message of President Jackson, Dec. 8, 1929, re-

printed in Richardson, Messages and Papers of

a cacoaiceha clipart lia de ililcnaiaeealialaih cadets 22

Pickering Papers Vol. 60 (Massachusetts Historical

SST scriciceisctucusilionbiieteabuahteliceleipieamaideaaaiginitieadcnaieinitiaioamiidii 7, 8,10

ix

TABLE OF AUTHORITIES - Continued

Page

President Jefferson's response to Handsome Lake,

1802, Avalon Project, available at www.yale.edu/

lawweb/avalon/jeffind2. htm ................ccccccccesesseeseeeeeeeees 10

Proceedings of the Commissioners of Indian Affairs,

appointed by law for the Extinguishment of In-

dian Titles in the State of New York (Albany

STII sssdisiidiiaiiaphissidaietaniaiiadeianiiiaieteaammaiiasaiapalaianendat 3,5, 6, 16

Report of Special Committee Appointed by the

Assembly of 1888 to Investigate the “Indian Prob-

lem” of the State, State of New York, No. 51, Al-

SURIRGE TIP vnendciencsevetitiensmeinidoaninehebuianapaianhdennecdaiatiaian 1, 9, 16

Report of the Secretary of War, S. Rep. No. 220,

ee BE, Cee crcctcctesesenninsinsanncntcssszcescseses 12

Statement of Ransom H. Gillett at Oneida Castle,

IE Fi Beictnseciessesstnssennansccteriigmutntiniammiiiicmets 26

The Federalist No. 42 (Madison) (J. Cooke, ed.

NER SR RST ME Shr eater nee ee net a NA 13

INTEREST OF AMICI’

Amici are federally recognized and/or traditional

Indian nations or tribes that are indigenous to/or histori-

cally connected to New York State.’ Amici Oneida Tribe of

Indians of Wisconsin and the Oneida of the Thames are

plaintiffs in the Oneida land claim along with the Oneida

Nation of New York, respondent here. See Oneida Indian

Nation of New York v. County of Oneida, 434 F. Supp. 527,

532 (N.D.N.Y.), aff’d, 270 U.S. 226, 230 (Oneida IT) (1985).

All amici’s experiences with New York respecting tribal

lands parallels that of the Oneida: persistent trading in

their lands without the required approbation of the United

States, giving rise to claims against New York similar to

that asserted by the Oneida. See Report of Special Com-

mittee Appointed by the Assembly of 1888 to Investigate the

“Indian Problem” of the State, State of New York, No. 51,

Albany 1889 [Whipple Report].

' In accordance with this Court’s Rule 37.6, amici state that no

counsel for any party authored part or all of this brief and that no

entity other than amici made a monetary contribution to the prepara-

tion or submission of this brief. The parties have consented to the filing

of this brief and letters showing such are filed with this brief in

accordance with Rule 37.3.

* See 68 Fed. Reg. 68180 (Dec. 5, 2003) (Cayuga Nation of New

York) and 68182 (Oneida Tribe of Indians of Wisconsin, Onondaga

Nation, St. Regis Mohawk Tribe, Seneca Nation of Indians, and

Tonawanda Band of Seneca Indians.)

* See Cayuga Indian Nation of New York. v. Pataki, No. 02-6111(L)

(2d Cir., argued March 31, 2004) (amicus Cayuga Nation); Oneida

Indian Nation of New York v. State of New York, 74-CV-187 (N.D.N.Y.)

(amici Oneida Tribe of Indians of Wisconsin and Oneida of the Thames);

St. Regis Mohawk Tribe v. State of New York, 82-CV-783, 82-CV-1114 &

89-CV-829 (N.D.N.Y.) (amici Mohawk Council of Akwesasne, Mohawk

Nation, and St. Regis Mohawk Tribe); Seneca Nation v. State of New

York., 85-CV-0411 (W.D.N.Y.) (amicus Seneca Nation of Indians); and

Seneca Nation v. State of New York, 2004 WL 2008521 (2d Cir., Sept. 9,

(Continued on following page)

2

Amici include tribal signatories to early treaties with

the United States, including the 1794 Treaty of Canandai-

gua, 7 Stat. 44, which confirmed reservations for them.

The Treaty of Canandaigua remains the cornerstone of

relations between the signatory tribes aud the United

States, with federal annuities under it having been paid

continuously since 1794. Felix S. Cohen, Handbook of

Federal Indian Law at 419 (1942 ed.): “These several

treaties guaranteed to the Iroquois (Six Nations) the right

of occupancy of their well-defined territories and had the

effect of placing the tribes and their reservations beyond

the operation and effect of general state laws.” Amici also

include tribal signatories to the Treaty of Buffalo Creek,

Treaty of January 15, 1838, 7 Stat: 550.

Many amici continue to occupy reservations that were

the subject of one or both these treaties, reservations that

are acknowledged by all as Indian country today. In this

proceeding, Petitioner City of Sherrill [Sherrill] disputes

that the Treaty of Canandaigua established the reserva-

tions confirmed there as Indian country and asserts that

any such reservations were abolished by the Treaty of

Buffalo Creek. Pet. Br., at 17-31, 31-39. By reason of

similar histories and treaty protected rights, amici have a

direct and profound interest in this proceeding.

STATEMENT OF THE CASE

The Statement of the Case made by Sherrill fails to

present the complete historical context for the issues

presented here. A more complete historical context is set

out below, which shows a consistent and longstanding

2004) (amici Seneca Nation of Indians and Tonawanda Band of Seneca

Indians.)

3

disregard by New York for federal treaty and statutory

protections for Six Nations’ territories.

Early federal-state conflict over relations with Six

, Nations

On July 13, 1775, Congress took control over relations

with the Six Nations Confederacy and approved a speech

to the Six Nations urging their neutrality in the impend-

ing war. See 2 Journals of the Continental Congress 93,

174-81 (Library of Cong. ed.). Ultimately, Congress failed

to persuade the Six Nations to stand neutral. The Six

Nations split internally, with significant factions of the

Seneca, Mohawk, Onondaga and Cayuga Nations joining

the British-cause and the Oneida and Tuscarora Nations

joining the American cause. See generally Barbara Gray-

mont, The Iroquois in the American Revolution, chap. v

(Syracuse U. Press, 1972). Major campaigns were fought

in Oneida territory,* which was rendered virtually unin-

habitable, and most Oneidas took refuge with the Ameri-

cans at Schenectedy. Jd. at 241-44.

The 1783 Treaty of Paris did not address relations

with tribal participants in the Revolutionary War and

Congress authorized federal treaty commissioners to do so.

The treaty commissioners were instructed to confirm

boundaries and terms of peace with the Six Nations and

give particular assurances to the United States’ allies:

Sixthly, And whereas the Oneida and Tuscarora

tribes have adhered to the cause of America and

* Oneida aboriginal territory was the frontier in New York, its

eastern boundary being the same as the 1768 Line of Property division

between Indian territory and white settlements. Proceedings of the

Commissioners of Indian Affairs, appointed by law for the Extinguish-

ment of Indian Titles in the State of New York (Albany 1861) [Hough

Report}, at 45.

4

joined her arms in the course of the late war, and

Congress have frequently assured them of pecu-

liar marks of favour and friendship, the said

commissioners are therefore instructed to reas-

sure the said tribes of the friendship of the

United States and that they may rely that the

lands which they claim as their inheritance will

be reserved for their sole use and benefit until

they may think if for their own advantage to dis-

pose of the same.

October 15, 1783, 25 Journals of the Continental Congress

680, 687.

In March 1783, the New York Legislature adopted its

first plan to acquire Iroquois territory. State commission-

ers were instructed to remove the Oneida and Tuscarora to

western New York and displace the Seneca, Cayuga, and

Onondaga from the State altogether. See Henry Manley,

The Treaty of Fort Stanwix, 1784, at 28 (N.Y. 1932). The

State abandoned its plan to expel the Iroquois when

Congress was made aware of its plan by the federal Indian

agent for the northern district. Jd. at 31-32.

On October 3, 1784, the federal treaty commissioners

appointed by Congress to negotiate for peace with the Six

Nations opened the federal negotiation at Fort Stanwix.

New York’s Governor Clinton ordered two state commis-

sioners to attend the negotiation, for the expressed pur-

pose of obstructing the federal proceedings. Hough Report,

at 63. Within a few days, the federal commissioners, who

had been advised of the state commissioners’ instructions,

ordered the military officers present to refuse the admis-

sion of the state commissioners to the treaty proceedings.

Manley, at 86.

The federal treaty commissioners concluded the

Treaty of Fort Stanwix with the Six Nations on October

22, 1784, 7 Stat. 15. The treaty accomplished three objec-

tives: first, it confirmed boundaries and established peace

5

on specified terms with the Seneca, Mohawk, Onondaga

and Cayuga nations; second, it provided that “The Oneida

and Tuscarora nations shall be secured in the possession of

the lands on which they are settled”;’ and third, it exacted

a cession of Seneca territory as retribution for the Seneca’s

part in the war. Graymont, at 282. The United States

confirmed all the terms of the Treaty of Fort Stanwix in

the 1789 Treaty of Fort Harmar, Treaty of January 9,

1789, 7 Stat. 33.

New York persisted in its efforts to obtain Iroquois

land, meeting with spectacular success in 1788 and 1789.

The New York Genesee Company of Adventurers had

obtained long term leases of Six Nations territories and,

on the pretext of protecting them from such arrangements,

the State called for the Six Nations to treat at Fort

Schuyler in March 1788. The State representatives met

first with the Onondaga Nation and extracted a cession;

next, the State representatives met with the Oneida

Nation, recommended a cession on the same terms as that

just concluded with the Onondaga, and obtained the

second cession. “The Deeds of Cession finally obtained

were upon nearly the same Basis as the Leases, in regard

to Annuities and Reservations.” Hough Report, at 126. The

State commissioners recommended the same terms to the

* At the time, the Tuscarora were guests of Oneida, residing at

Oneida territory, but with no proprietary interest in Oneida territory,

and with the Seneca near Fort Niagara. Federal Power Comm'n v.

Tuscarora Indian Nation, 362 U.S. 99, 121 n.18 (1960). The Tuscarora

had emigrated from North Carolina and acquired territory in New York

between 1798 and 1804. Jd. at 106 n.10.

* The Indian Claims Commission found that the 1788 Oneida

cession to the State was obtained by deceit and fraud. See Oneida

Indian Nation of New York v. United States, 37 Ind. Cl. Comm. 522, 530

(1978).

6

Cayuga Nation, which concluded a very similar cession of

its lands to the State in 1789. Hough Report, at 251.

Constitutional period federal relations with the

Six Nations

Shortly after adoption of the Constitution, Congress

asserted its authority over the protection of Indian lands.

With the passage of the Indian Trade and Intercourse Act

on July 22, 1790, the Congress 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 having 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. 137, § 4 (emphasis supplied) (hereafter “Noninter-

course Act”). In a speech to the Seneca leader Cornplanter,

President Washington made plain that the Nonintercourse

Act applied to Six Nations’ territories:

Here, then, is the security for the remainder of

your lands. No State, nor person, can purchase

your lands, unless at some public treaty, held

under the authority of the United States...

If ... you have any just cause of complaint

against [a purchaser] and can make satisfactory

proof thereof, the federal courts will be open to

you for redress, as to all other persons.

4 American State Papers, Indian Affairs [ASPIA], Vol. 1, at

142 (1832); see generally Francis Prucha, American Indian

Policy in the Formative Years: The Indian Trade and

Intercourse Acts, 1790-1834 (University of Nebraska Press

1970). '

7

Following the passage of the 1790 Act, federal officials

frequently noted the necessity of federal approval for

transfers of tribal lands in New York. For example, writing

in 1791, Secretary of War Henry Knox, in whom the

administration of Indian affairs was vested at the time,

wrote that “(t]he right of the State of New York, to the

preemption of the Cayuga lands is unquestioned, and also

that the right embraces all possible alienations of said

lands by the Indians, with the concurrence of the United

States, according to the constitution and laws.” I ASPIA, at

169 (emphasis supplied.) And, in 1791, federal treaty

commissioner Timothy Pickering repeated President

Washington’s earlier statement to all the Six Nations.

Pickering Papers Vol. 60, at 79 (Massachusetts Historical

Society).

These assurances were repeated directly to the

Oneida at the negotiations on the 1794 Treaty of Canan-

daigua. Meeting first with the Oneida, federal treaty

commissioner Pickering reiterated that the Noninter-

course Act declared that no sale of Indian lands would be

valid, “unless made at a public treaty held under the

authority of the United States.” Jd. at 224. Pickering then

proceeded to negotiate necessary and final terms of peace

with the Six Nations, because the Seneca had continued to

object to the extent of land ceded to the United States at

the Treaty of Fort Stanwix and threatened to join the

western tribes in a general uprising against the United

States. The necessary terms required a re-cession to the

Seneca Nation of some portions of those lands ceded to the

United States in 1784 and confirmation of all tribes’

reservations. See generally Edward Phillips, Timothy

Pickering at His Best: Indian Commissioner, 1790-1794,

CII Essex Institute Historical Collections, No. 3, at 190-

202 (1966).

The modified Seneca boundaries were set out in a

separate article in the final treaty, with the other nations

8

or tribes’ existing reservations acknowledged in another.

The Seneca leaders also demanded a fresh confirmation of

their lands from the United States. Pickering agreed,

placing the confirmation at the close of each of the sepa-

rate articles. Pickering Papers, Vol. 60, at 206A-209. In its

final form, the Treaty of Canandaigua confirmed the

Oneida, Onondaga and Cayuga reservations in article II,

confirmed the modified Seneca boundary in article III, and

gave the United States’ assurance that all the signatory

nations’ or tribes’ lands would remain theirs in the same

terms at the end of both articles II and III. Finally, the

treaty obligated the United States to pay an annual

annuity to the Six Nations of $4,500.00, “[i]n consideration

of the peace and friendship hereby established.” 7 Stat. 44,

art. VI." The United States has continuously since 1794

made the annuity payment required by the Treaty of

Canandaigua to the Six Nations members and successors.

Tuscarora Indian Nation, 362 U.S at 118 n.17.

New York acquisition of Six Nations’ reservation

land

Even after adoption of the Constitution and passage of

the Nonintercourse Act, New York continued its practice of

acquiring Iroquois territory without regard to federal

policy or law. In 1793 and again in 1795, the State legisla-

ture authorized its commissioners to treat for Oneida,

Onondaga, and Cayuga lands. Act of March 11, 1793, 1793

N.Y. Laws, ch. 51; Act of April 9, 1795, 1795 N.Y. Laws, ch.

” As noted above, the Tuscarora reservation was formally esitab-

lished between 1798 and 1804, after the Treaty of Canandaigua.

Similarly, the St. Regis Mohawk Reservation, originally excepted from a

sale from the State to a private pre-emption holder, was also confirmed

later by federal treaty in 1796. See Treaty with the Seven Nations of

Canada, May 31, 1796, 7 Stat. 55; Handbook of Federal Indian Law, at

423 n.69.

9

70. Under authority of these acts, state commissioners

purported to acquire portions of the Onondaga, Oneida,

and Cayuga Reservations, all without approva) by the

United States Senate or proclamation by the President.

See Whipple Report, at 195, 199, 224 & 244.

From these early transactions until the mid-

nineteenth century, the State entered into other transac-

tions with nations and tribes in its borders tw acquire

tribal lands. See generally Whipple Report, Index. The

majority of these transactions involved Oneida territory,

but others involved Cayuga, Mohawk, Onondaga, and

Seneca reservations.” Most of these transactions were not

ratified and proclaimed as federal treaties, although a few

were when particular State officials decided to comply

with the Nonintercourse Act. Jd. at 22, 249.

New York had actual knowledge of the applicability

and requirements of federal law at the time it engaged in

these transactions. In 1795, then Secretary of War

Pickering (who had just concluded the Treaty of Canan-

daigua for the United States) was advised by the federal

Indian agent for the northern department that New York

had authorized its commissioners to meet with the

* There were relatively few State treaties with Seneva, even

though the Treaty of Canandaigua confirmed a large territory for the

Nation. This is because New York State ceded its right of pre-emption to

most Seneca territory to Massachusetts in the 1786 Hartford Compact,

and Massachusetts in turn sold it to private investors. As a result, the

1797 Treaty of Big Tree, in which the Seneca lost possession of the

majority of their territory reserving cértain reservations, was a

transaction among these private investors, the Seneca Nation, and the

United States. Agreement with the Seneca, September 15, 1797, 7 Stat.

601. However, New York did acquire twe, small portions of Seneca

territory to which it had retained the right of pre-emption and author-

ized the sale of other portions to private individuals who had purchased

the right of pre-emption from Massachusetts. See Whipple Report, at

17-265.

10

Oneida, Onondaga, and Cayuga for the purpose of acquir-

ing tribal land. Pickering sought an opinion from the

United States Attorney General William Bradford as to

whether the Nonintercourse Act applied to such state

transactions. Bradford responded that it did:

The language of this act [of March 1, 1793] is too

express to admit of any doubt ... It is true, that

by treaties made by the State of New York with

the Oneidas, Onondagas and Cayugas, previous

to the present Constitution of the United States,

those nations ceded all their lands to the people

of New York, but reserved to themselves and

their posterity forever (for their own use & culti-

vation, but not to be sold, leased or in any other

manner disposed of to others,) certain tracts of

their said lands, with the free right of hunting &

fishing &c. So far therefore as respects the lands

thus reserved the treaties do not operate further

than to secure to the State of New York the right

of preemption, but subject to this right they are

still the lands of those nations, and their claims

to them, it is conceived cannot be extinguished

but by a treaty holden under the authority of the

United States, and in the manner prescribed by

the laws of Congress.

Resp. App. la-4a; accord President Jefferson’s response to

Handsome Lake, 1802, Avalon Project, available at www.

yale.edu/lawweb/avalon/jeffind2.htm (“when you desire to

sell, even to a State, [that] an agent from the United

States should attend the sale, see that your consent is

_ freely given, a satisfactory price paid, and report to us

what has been done, for our approbation.”) Pickering took

the precaution of sending the Attorney General’s opinion

to Governor Clinton, the same governor who had at-

tempted to thwart the 1784 Treaty of Fort Stanwix. See

page 4, supra; Pickering Papers, vol. 60, at 209. The State

11

concluded this particular and the subsequent transactions

nonetheless.

Attempted removal of the Six Nations from New

York

By the early nineteenth century, the holdings of the

Six Nations had been reduced by New York from millions

to less than two hundred thousand acres. Many of those

Indians who were displaced as a result relocated to other

reservations in the State of New York, while others looked

to Indian territory outside the State. In 1815, Six Nation

chiefs inquired in a formal memorial of the President

whether he would agree to their acquisition of land in the

Ohio territory among Indian friends and whether, in that

event, “existing treaties [would] still remain in force, and

annuities paid as heretofore.” Emigrant Indians v. United

States, 5 Ind. Cl. Comm. 560, 562-63 (1957). In 1816,

Secretary of War Crawford responded that “removal shall

in no manner change your friendly relations and existing

treaties with the Government,” including annuities there-

under. Jd.; see also Letter of Secretary of War Calhoun to

Jasper Parrish, Sub-Agent, Six Nations, May 14, 1818, W.

Hemphill, ed., The Papers of John C. Calhoun, 1817-1818,

Vol. III (1967) (Six Nations assured that land acquired in

the West not intended by the United States to be in

exchange for tribal lands in New York.)

Having received the requested assurances, certain of

the Six Nations, denominated New York Indians in these

transactions, negotiated with the Menominee and Winne-

bago Nations to purchase land in Wisconsin, eventually

acquiring 500,000 acres. See Treaty with the Menominee,

February 8, 1831, 7 Stat. 342. After the 1831 treaty, the

United States expressed concern that Wisconsin was

not well suited as a new home for the New York Indi-

ans. Department of War officials repeatedly warned that

i*.

?

<?

-

12

non-Indian settlers would increase in the vicinity of Green

Bay in the coming years and urged the New York Indians

to relocate west of the Mississippi. See Report of the

Secretary of War, S. Rep. No. 220, 24th Cong., Ist Sess.

(1836).

To exchange the territory acquired in Wisconsin for

territory in Kansas, the United States concluded the 1838

Buffalo Creek Treaty with the New York Indians. 7 Stat.

550. In its preamble, the treaty summarized the memorial

sent by the Six Nations to the President in 1815 and the

President's response, including the United States’ com-

mitment that existing treaties would remain in full force,

as the premise for the 1838 treaty. The purpose of the

treaty was to exchange land acquired by New York Indians

in Wisconsin for land in the Kansas territory. Thus, article

1 ceded the Wisconsin land, except for a tract at Green

Bay, and article 2 described the new tract set aside for the

New York Indians. Articles 10 and 14 approved certain

sales of Seneca and Tuscarora lands in New York to

private holders of the right of pre-emption. No other sales

of New York reservations were approved in the treaty.

The Buffalo Creek Treaty did not compel the removal

of the New York Indians to the Kansas territory and the

New York Indians did not, in fact, remove. New York

Indians v. United States, 170 U.S. 1, modified on other

grounds, 170 U.S. 614 (1898). The Seneca reservations

ceded in article 10 of the treaty were restored by later

federal treaties with the Seneca Nation and the Tona-

wanda Band of Seneca. See Treaty with the Seneca, May

29, 1842, 7 Stat. 586; Treaty with the Seneca, Tonawanda

Band, November 5, 1857, 11 Stat. 735. The Tuscarora sale

approved by the treaty was cancelled later, leaving the

Tuscarora continuously in possession. Handbook of Fed-

eral Indian Law, at 423 n.79.

13

SUMMARY OF ARGUMENT

Before adoption of the Constitution, New York aggres-

sively asserted its so-called legislative right and extin-

guished title to literally millions of acres of Iroquois

territory in 1788 and 1789. See Worcester v. Georgia, 31

U.S. 515, 559 (1832) (federal authority at the time shack-

led by ambiguous proviso that legislative power of any

state within its own limits shall not be infringed or vio-

lated); United States v. Forty Three Gallons of Whiskey, 93

U.S. 188, 194 (1876). The Founding Fathers stripped the

legislative rights proviso from Cungress’ authority over

Indian affairs in the Constitution, believing the proviso to

be “absolutely incomprehensible.” The Federalist No. 42,

at 284 (Madison) (J. Cooke, ed. 1961). Thus, the whole

power of regulating affairs with tribes, including the

exclusive power to extinguish tribal title, was vested in the

Congress. This exclusive federal power extends to tribal

lands in New York, even though New York rather than the

United States held the fee title, or right of pre-emption, to

those lands. Oneida Indian Nation v. County of Oneida

(Oneida I), 414 U.S. 661, 667, 670 (1974).”

Nonetheless, “New York State continued to take the

same position concerning its superiority over Indian

affairs after the Consitution (sic) was adopted, and after

the Trade and Intercourse Act was passed.” Oneida Indian

Nation of New York v. United States, 43 Ind. Cl. Comm.

373, 377-78 (1978). The State persisted in dispossessing

tribes of their lands without federal approbation, including

* Amici Madison and Oneida Counties argue here that the Nonin-

tercourse Act did not apply to the individual states. See Amici Madison

& Oneida Counties Br., at 13. New York made this identical argument

as amicus before the Supreme Court in Oneida | and the Supreme

Court squarely rejected it. Amicus Curiae State of New York, at 10-22;

Oneida I, 414 U.S. at 670.

14

an 1805 transaction with the Oneida Nation that pur-

ported to cede the land that Sherrill asserts it can tax.

Now, Sherrill argues that the Oneida Reservation is a

state, not a federal, reservation, and for this and other

reasons is not subject to the protection of federal law.

These arguments come far too late in the day of Iro-

quois/New York relations to be credible. The literal lan-

guage of the Treaty of Canandaigua and the admitted

federal reservation status of the similarly created Onon-

daga Reservation disprove the claimed state law status of

the Oneida Reservation. Further, this Court’s Oneida I]

decision forecloses Sherrill’s construction of the Noninter-

course Act as inapplicable to the Oneida Reservation.

Holding that federal common law principles codified in the

Act precluded the alienation of Oneida land without the

approbation of the United States, the Court effectively

determined that the Act applied to New York reservations.

Oneida IT, 270 U.S. at 240 (1985). Federal officials, includ-

ing President Washington, so stated at the time. Thus,

Sherrill’s claimed authority to tax the subject land runs

squarely into the federal reservation status and restraints

against alienation of the subject land.

The status of the federal Indian reservations in New

York was not altered by the 1838 Buffalo Creek Treaty.

The Buffalo Creek Treaty did not compel removal and did

not abolish the tribes’ reservations in New York. Instead,

the treaty contemplated that, were the New York Indians

to remove, separate transactions respecting their lands in

New York would take place, which transactions would

comply with the Nonintercourse Act. These events did not

occur and the New York nations and tribes remain in New

York today. See New York Indian v. United States, 170 U.S.

1 (1898).

—

15

ARGUMENT

I. The Six Nations and successor tribes occupy

Indian country in New York State that is sub-

ject to federal treaty and statutory restraints

against extinguishment.

A. The Treaty of Canandaigua confirmed

federal Indian reservations for the tribal

signatories thereto.

By its express terms, the Treaty of Canandaigua

“acknowledge(d] the lands reserved to the Oneida, Onon-

daga and Cayuga Nations, in their respective treaties with

the state of New York, and called their reservations, to be

their property;” 7 Stat. 44, art II. A plainer expression of

federal intent to recognize an Indian reservation is diffi-

cult to imagine. Compare Northwestern Bands of Shoshone

Indians v. United States, 324 U.S. 335, 350 (1945) (treaty

provision acknowledging territory to be that of signatory

tribe recognizes reservation); United States v. Shoshone

Tribe, 304 U.S. 111, 113 (1938) (treaty providing territory

“shall be and the same is set apart for the absolute and

undisturbed occupation ... ”)

As to the Oneida Nation in particular, the federal

purpose in securing the reservation was pointed and

powerful. The Oneida had fought as an American ally in

the Revolutionary War and had suffered grievously as a

result. In the trilogy of treaties concluding with the Treaty

of Canandaigua, Congress made clear that it secured the

Oneida Nation in its territory out of gratitude for Oneida

loyalty during the Revolution. This was appropriate in

light of the displacement of the Oneida from their territory

during the war and the obvious and continuing designs of

New York State upon Oneida territory. See page 3, supra.

Notwithstanding Sherrill’s contrary conclusion, Congress’

“peculiar marks of favour and friendship” for its Oneida

16

ally constitutes sufficient federal purpose for the set aside

in the Treaty of Canandaigua. See Pet. Br., at 23-24.

Were there any doubt, the similar historical origin of

the Onondaga Reservation, an admitted federal Indian

reservation, with that of the Oneida Reservation concludes

the matter. In March 1788, New York invited the Six

Nations to meet with state commissioners to consider

leases of Six Nations territory obtained by private indi-

viduals. See Hough Report, at 118-128. The meeting took

place in August 1788 at Fort Schuyler. Because Onondaga

arrived first, the State negotiated first with the Onondaga

Nation, concluding a treaty on September 12. Whipple

Report, at 190. Article I of the Onondaga treaty purported

to cede all Onondaga lands to New York State and article

II described an area reserved for exclusive Onondaga use

and occupation out of the so-called ceded lands. Jd.

The State commissioners then turned their attention

to Oneida. The State commissioners described the Onon-

daga treaty to the Oneida and recommended that the

Oneida enter into a similar arrangement. Hough Report,

at 212-13. The Oneida did so on September 28, 1788.

Whipple Report, at 237. As had the Onondaga treaty, the

Oneida treaty purported to cede all Oneida land to the

State in article I and article II described an area reserved

for exclusive Oneida use and occupation out of the so-

called ceded land. Jd.“

Sherrill relies on these articles as having established a state

reservation that is not subject to federal supervision. Pet. Br., at 20-22.

This construction is not credible on its face, inasmuch as it runs counter

to the basic understanding of aboriginal title. However it might be

labelled, the Oneida retained the exclusive right of possession to the

reservation in the 1788 state treaty, a right sufficient to invoke the

protection of federal common law. Oneida I, 414 U.S. at 667-68, (right of

occupancy recognized in Indians, a right sometimes called Indian title,

which right could only be terminated by the United States. It is the

(Continued on following page)

17

Despite its first appearance in a 1788 state treaty, the

Onondaga Reservation has since appeared as a federal

Indian reservation on authoritative maps. See, e.g., United

States Department of the Interior, Bureau of Land Man-

agement, Cadastral Survey, American Indian Reservations

and BIA Regional, Agency and Field Offices." It has since

been treated as a federal Indian reservation by the United

States. See 1935 Memorandum for Assistant Attorney

General Blair, Re: Onondaga Reservation (“The Reserva-

tions within the State of New York are in the same status

as other Indian Reservations in the United States.”) And it

has since been treated as a federal Indian reservation by

the courts of New York. See Pierce v. State Tax Commis-

ston, 286 N.Y.S.2d 162 (N.Y., App. Div. 1968) (application

of state sales tax on Onondaga Reservation pre-empted by

federal authority); Andrews v. New York, 79 N.Y.S.2d 479

(N.Y. Ct. Cl. 1948) (state court jurisdiction over land

disputes on Onondaga Reservation pre-empted by federal

law); and Lyons v. Lyons, 149 Misc. 723 (Sup. Ct. Onon-

daga Co. 1933) (state probate law on Onondaga Reserva-

tion pre-empted by federal law.) These same rules of

possessory interest that federal law protects, even where that right of

occupancy is not based on action by the United States. Oneida II, 470

U.S. at 236.

" This map is available at the agency’s official web-site: http://

www.blm.gov/cadastral/biamaps/biaoffices.htm. This map also shows

the St. Regis Mohawk Reservation as a federal Indian reservation,

notwithstanding the fact that it was originally reserved in a sale by

New York to a private individual and later confirmed by federal treaty,

- similar to the Onondaga and Oneida reservations. See n.7, supra.

? In People ex rel. Cusick v. Daly, 212 N.Y. 183 (1914), the New

York Court of Appeals explicitly rejected the state reservation distinc-

tion with regard to the Tuscarora Reservation, created largely by

purchase by the Indians:

“The fact remains, however, that Congress has always

asserted and exercised the right to legislate in all Indian

affairs, and its power to do so has been upheld by the

Supreme Court in a case involving the validity of the very

(Continued on following page)

18

federal pre-emptive authority also apply to the federal

treaty confirmed Oneida Reservation, notwithstanding its

historical origin in a 1788 state treaty.

B. Federal common law and statutory re-

straints against alienation apply to the

Oneida and other treaty confirmed reser-

vations in New York.

This Court resolved the question of the applicability of

federal common law restraint against alienation to the

Oneida Reservation in Oneida II. In that action, the

Oneida plaintiffs challenged the legality of the 1795

transaction between New York and the Oneida based on

federal common law and the Nonintercourse Act. The

plaintiffs sought trespass damages for the two years

preceding the filing of the complaint, 1968 to 1970. Id. at

229. Initially, the action was dismissed for lack of federal

question, a holding that was ultimately reversed by this

Court unanimously. Oneida I, supra. On remand and after

further proceedings, the district court entered judgment

for the Oneida plaintiffs and awarded trespass damages in

the amount of $16,694. Oneida II, 470 U.S., at 230.

In its second consideration of the case, this Court in

Onaida II acknowledged that the Oneida Reservation had

been reserved in a 1788 treaty with New York State. Jd.

at 231. Nonetheless, the Court held that the reservation

was protected by federal common law against state

statute now under consideration. (U.S. v. Kagama, supra.) It

is said that there is a difference between the Indians whose

reservations are the direct gift of the Federal government

and those whose reservations have been derived from the

state or from other sources. We find no such «listinction in the

statute, and we can think of none that logically differentiates

one from the other.”

(emphasis supplied.) Jd. at 371.

19

extinguishment of Oneida possessory rights without

federal consent, principles codified in the Nonintercourse

Act. Id. at 236, 240. The Court further held that the

defenses asserted against the Oneida claim lacked merit

and affirmed the judgment in favor of the Oneida under

federal common law. Id. at 240, 253."

By affirming a judgment based on federal common law

principles codified in the Nonintercourse Act, this Court

clearly implied that the statute applied to the Oneida and

other reservations in New York State. This statutory policy

was carried forward in all subsequent re-enactments

without major change, including the 1802 version of the

Act that was in effect when New York purported to extin-

guish Oneida title to the subject land here. See Oneida I,

414 US. at 668 n.4.

The criminal provisions of the 1802 Act encompassed

lands allotted to, belonging to, or secured by treaty with the

United States — plainly including reservations such as

those secured by articles II and III of the Treaty of Canan-

daigua. See Act of March 30, 1802, 2 Stat. 390, §§ 2,3,4&

5. The all-important prohibition against purchase of tribal

lands included a _riminal provision for violation of the

prohibition with the following proviso:

Provided, nevertheless, that it shall be lawful for

the agent or agents of any state, who may be

" This Court also explicitly rejected the notion that tribal land

transfers could be ratified absent a plain and unambiguous expression of

Congress’ intent to extinguish tribal title. Oneida I], 470 U.S. at 247-48.

The suggestion by amici, then, that there has been implicit approval of

state treaties acquiring Oneida land is wrong as a matter of law. See Brief

of Amici Town of Lenox et al., at 8 n.10. And as noted above, this Court

expressly affirmed the judgment holding the 1795 state treaty void, the

counties liable for trespass, and awarding monetary damages for the

counties’ trespass. Oneida II, 470 U.S. at 253. Thus, the argument of amici

that the Oneida II decision did not resolve issues of present day rights and

remedies is also wrong. See Brief of Amici Town of Lenox ef al., at 11.

20

present at any treaty held with Indians under

the authority of the United States, in the pres-

ence, and with the approbation of the commis-

sioner or commissioners of the United States,

appointed to hold the same, to propose to, and

adjust with the Indians, the compensation to be

made, for their claims to lands within such state,

which shall be extinguished by the treaty.

Id. § 12. This proviso effectively lays out how states that

hold claims to tribal lands (the right of pre-emption) can

proceed to acquire such lands, i.e., through a treaty held

under authority of the United States, thereby indicating

tribal lands cannot be acquired by states otherwise.“

Neither do any terms of the Treaty of Canandaigua

constitute pre-approval of tribal land by the State for

purposes of the Nonintercourse Act. See Pet. Br., at 27.

Articles II and III of the treaty provide that the reserva-

tions secured for the nations or tribes “shall remain theirs,

until they choose to sell the same to the people of the

United States, who have the right to purchase.” This

merely refers to the entities who have the right to make

the purchase-private interests in the case of Seneca land

and the State in the case of other reservations. It does not

indicate that the confirmed reservations have been ex-

empted from the statutory restraint against alienation. To

the contrary, federal treaty commissioner Pickering

advised the Oneida at the Canandaigua negotiation that a

sale of their land required a public treaty under the

“ Amici Madison and Oneida Counties argue that post-1790

versions of the Nonintercourse Act did not apply within the jurisdiction

of individual] states because of the so-called surrounded by settlements

proviso. Brief of Amici Madison and Oneida Counties, at 12-13. This

Court rejected this limited construction of the Act in Oneida I, holding

that the federal principles embodied in the Act applied to the original

thirteen states. 414 U.S. at 670.

ecw ware art: ~

mo 8

21

authority of the United States - in other words, compli-

ance with the Nonintercourse Act.

It is undisputed here that New York did not comply

with federal common law or the Nonintercourse Act in

1805 when it purported to extinguish Oneida title to the

subject lands, a portion of the federally confirmed Oneida

Reservation. As a result, Oneida title to the subject lands

has not been extinguished and those lands are part of the

federally confirmed Oneida Reservation, or Indian coun-

try. 15

Il. The 1838 Buffalo Creek Treaty was not a

mandatory removal treaty and did not result

in removal of the New York Indians.

The hallmark of mandatory removal treaties under

the 1830 Indian Removal Act, 4 Stat. 411 (May 28, 1830),

was the extinguishment of Indian title in the treaty by the

United States. While removal served as the backdrop to

the Buffalo Creek Treaty, its structure was different from

that of mandatory removal treaties. Extinguishment of

Indian title under Buffalo Creek would occur, if at all, in

separate voluntary agreements between the Indians and

New York or individual purchasers of the right of pre-

emption, subject to the requirements of the Noninter-

course Act. The treaty, however, never actually effected

removal of the New York Indians.

* See 18 U.S.C. §115K(a), which by its express terms includes

reservations under the jurisdiction of the United States as Indian

country. This Court has adopted this statutory definition for all

purposes, including the availability of the per se rule against state

taxation of Indian property within Indian country. Oklahoma Tax

Commission v. Chickasaw Nation, 515 U.S. 450, 458 (1995).

22

A. Mandatory removal was generally accom-

plished by extinguishment of title by the

United States.

The roots of the removal policy are found in the 1802

Compact between Georgia and the United States, by which

Georgia ceded its claims to western lands in exchange for

the United States’ agreement to “extinguish, for the Use of

Georgia, ... peaceably ... and on reasonable terms, the

indian Title” to lands in Georgia. Articles of Agreement

and Cession, art. 1 (April 24, 1802), reprinted in Territorial

Pepers, V, at 142-144. Almost without exception, the

removal treaties that followed, both in the southern and

“northwest” states, provided for the extinguishment of

Indian title by the United States in exchange for new

lands in the west. The Cherokees, for example, “cede|d] to

the United States” certain of their “lower town” lands in

exchange for lands on the Arkansas and White Rivers.

Treaty with the Cherokee, July 8, 1817, art. 1, 7 Stat. 156.

The Delawares agreed to “cede to the United States all

their claim to land in the state of Indiana.” Treaty with the

Delawares, October 3, 1818, art. 1, 7 Stat. 188.”

Many of the early treaties lacked a date certain for

removal, and the slow pace of actual removal frustrated

the southern states, particularly Georgia. In response,

Congress, with strong encouragement from President

Jackson, sought to legislatively enforce the removal policy.

See Message of President Jackson, Dec. 8, 1929, reprinted

in Richardson, Messages and Papers of the President, Il,

456-59; Prucha, American Indian Policy, at 237-44. The

** See also, e.g., Treaty with the Kickapoo, July 30, 1819, art. 1, 7

Stat. 200 ‘the Tribe agreed to “cede and relinquish to the United States

for ever, al] their right, interest, and title of, in, and to, the following

tracts of land ...”); Treaty with the Creeks, January 24, 1826, art. 2, 7

Stat. 286 (“The Creek Nation of Indians cede to the United States all

the land belonging to the said Nation in the State of Georgia . . . ”).

23

Jacksonian view was that Indian tribes were no more than

tenants at will who could be removed from their lands at

any time deemed appropriate by the states. See, e.g.,

H.Rep. No. 227, 21st Cong., lst Sess. (1830). The congres-

sional debate on the Removal Act focused on the issue of

the nature of the Indians’ property right, with senators

and congressmen from the south arguing in favor of the

Jacksonian view and in support of the removal policy, and

those from the northeast arguing passionately in support

of Indian title and against removal. Compare Statement of

Sen. Forsyth (Ga.), 6 Cong. Deb. 325-39 (1830) with

Statement of Mr. Huntington (Conn.), id. at 4-18 (Omitted

Speeches). See also Prucha, American Indian Policy, at

239-40. Within two years, the Supreme Court had repudi-

ated the view that Indian tribes held no more than a

tenancy at will subject to defeasance by the states. Worces-

ter v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832); Cherokee

Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Implementa-

tion of the removal policy, therefore, continued to be

carried out through extinguishment of Indian title by

treaty.

Virtually all of the approximately thirty Removal Act

treaties included a clear extinguishment of title to the

lands from which the Indians were being removed, except

for lands specifically reserved therein. For example, soon

after passage of the Removal Act, the Choctaw Nation

“consentied) and ... cedeld] to the United States, the

entire country they ownled] and possess[ed], east of the

Mississippi River. ... ” Treaty with the Choctaw, Septem-

ber 27, 1830, art. III, 7 Stat. 333. Similarly, the Winnebago

Nation “cede({d] to the United States, forever, all the lands,

to which said nation have title or claim... . ” Treaty with

the Winnebago, September 15, 1832, art. I, 7 Stat. 370. In

1835, the Cherokees “cede[d] relinquishl[ed] and convey|ed]

to the United States all the lands owned claimed or

possessed by them east of the Mississippi River ... ”

24

Treaty with the Cherokee, December 29, 1835, art. 1, 7

Stat. 478." No similar cessions of land in New York were

obtained in the Buffalo Creek Treaty.

B. Unlike mandatory removal treaties, the

Buffalo Creek Treaty did not compel re-

moval through extinguishment of title by

the United States and did not abolish the

reservations in New York.

1. The treaty was intended and under-

stood as setting aside lands in Kansas

for voluntary removal.

The Buffalo Creek Treaty was net considered a

mandatory removal treaty by either the New York Indi-

ans or the United States. As stated by the Oneida in a

memorial to President Monroe on November 11, 1818:

“your petitioners assented to the said memorial, not

intending or understanding that they had in any way

committed themselves as to the time they might elect to

remove to the west — for your practitioners considered the

" See also, e.g., Treaty with the Creeks, March 24, 1832, art. 1, 7

Stat. 366 (“The Creek tribe of Indians cede to the United States all

their land, East of the Mississippi River.”); Treaty with the Chickasaw,

October 20, 1832, art. I, 7 Stac. 381 (“the Chickasaw nation do hereby

cede, to the United States, all the land which they own on the east side

of the Mississippi River, including all the country where they at present

live and occupy.”),; Treaty with the Chippewa, September 26, 1833, art.

Ist, 7 Stat. 431 (“the United Nation of Chippewa, Ottawa, and Potawa-

tomie Indians, cede to the United States all their land, along the

western shore of Lake Michigan, and between this Lake and the land

ceded to the United States by the Winnebago nation ... supposed to

contain about five millions of acres.”); Treaty with the Potawatomi,

February 11, 1837, art. 1, 7 Stat. 532 (“hereby cede to the United States

all their interest in said lands, and agree to remove to a country that

may be provided for them by President of the United States, southwest

of the Missouri River... ”).

25

western lands more as a retreat for their children than as

a present residence for themselves.” Memorial of Oneida

Indians to President of the United States, National Ar-

chives RG279, Records of the Indian Claims Commission,

Docket No. 301, Box 2674, Claimant’s Exh. 2083. In May of

that same year, Secretary Calhoun wrote to Jasper Parrish,

Sub-Agent of the United States that “certain persons from

interested motives have induced the Indians of the Six

Nations to believe, that should they emigrate and settle on

lands belonging to some of the Indians to the West, the

lands which they would acquire, would be in lieu, or ex-

change of that which they now hold in New York. This is not

intended by the President. ... ” Letter of Secretary of War

Calhoun to Jasper Parrish, Sub-Agent, Six Nations, May

14, 1818, W. Hemphill, ed., The Papers of John C. Calhoun,

1817-1818, Vol. II (1967); see also Oneida Indian Nation of

New York v. United States, 43 Ind. Cl. Comm. at 447."

The voluntary nature of removal under the Buffalo

Creek Treaty is directly reflected in the instructions to

R.H. Gillet, the federal commissioner who negotiated the

treaty. The instructions provide that “[a]s fast as any

considerable number are prepared to go, they shall be

removed & subsisted, & a district of the reservation west,

assigned to them, & a just proportion of their lands in New

York, yielded to the persons entitled thereto.” Brief of

Instructions for Meeting with New York Indians, National

Archives Microfilm Collection, M234, reel 583, frames 540-

41. Thus removal was to occur only when the Indians

* Calhoun consistently made it clear that while he believed

removal to be advantageous, it would be accomplished only with the

consent of the Indians. /d.

26

“[were] prepared to go,” and only when they yielded their

lands “to the persons entitled thereto.””

The treaty as presented to the Senate was amended,

necessitating the further consent of the New York Indians.

New York Indians, 170 U.S. at 5 n.1, Finding of Fact 10. In

seeking the consent of the Oneida, Commissioner Gillet

again confirmed the voluntary character of the treaty:

the treaty does not and is not intended to compel

the Oneidas to remove from their reservation in

the State of New York to the west of the State of

Missouri or elsewhere unless they shall hereafter

voluntarily sell their lands where they reside &

agree to do so. They can if they choose to do so

remain where they are forever. The treaty gives

them lands if they go to them & settle there but

they need not go unless they wish to. When they

wish to remove they can sell their lands to the

Governor of the State of New York & then emi-

grate. But they will not be compelled to sell or

remove.

Statement of Ransom H. Gillet at Oneida Castle, August 9,

1838, JA 146.

Consistent with the voluntary terms of the treaty, the

Government never took steps to compel removal of the

New York Indians to Kansas. See State of New York ex rel.

Cutler v. Dibble, 62 U.S. 266, 370 (1858) (“by this case, it is

admitted that the Indians have not been removed by the

United States”); see also New York Indians, 170 U.S. 1.

Removal under the treaty, if such was to occur, required

* See also Article 3 of the treaty: “such of the tribes of the New

York Indians as do not accept and agree to remove to the country set

apart for their new homes within five years, or such other time as the

President may, from time to time, appoint, shall forfeit all interest in

the lands so set apart, to the United States.”

_—__— — a

- ee ae eee. ee ee eo oe

27

extinguishment of title through separate transactions

which either did not occur or were never effectuated.

2. The treaty contemplated separate

transactions to extinguish title which

never occurred or were modified; as a

result, the New York Indians were

never removed and remain in New

York today.

At the time of the 1838 treaty, the Seneca, Onondaga,

Oneida, Cayuga, Tuscarora, and St. Regis Mohawk each

possessed a reservation in New York. See New York Indi-

ans, 170 U.S. at 5 n.1, Finding of Fact 7. Unlike the

mandatory removal treaties discussed in part A, removal

under Buffalo Creek required a two-step process: the

setting aside of the Kansas lands by the United States in

the treaty; and extinguishment of title in separate agree-

ments with the State or private land speculators who held

the right of pre-emption subject to the requirements of the

Nonintercourse Act. Two separate transactions involving

the Seneca and Tuscarora, which are referenced in and

annexed te the Buffalo Creek Treaty, illustrate the addi-

tional steps contemplated by the treaty as necessary to

extinguish title and effect removal. But even these sepa-

rate agreements proved ineffectual to extinguish those

nations’ interests and no removal occurred.

In the Seneca agreement, which was negotiated before

and approved by a federal commissioner, the remaining

Seneca reservations at Buffalo Creek, Tonawanda, Catta-

raugus and Allegany, were purchased by Thomas Ogden

and Joseph Fellows, the pre-emption right holders. Almost

immediately, however, the Seneca protested the treaty as a

fraud engineered by Ogden and Fellows. New York Indians

at 543, Finding 11. See also Frederick Houghton, “The

History of the Buffalo Creek Reservation,” in Frank H.

28

Severance, ed., Publications of the Buffalo Historical

Society, Vol. 24, 1920. The Seneca continued their protests

until a compromise was negotiated in 1842 by which

Ogden and Fellows purchased the Buffalo Creek and

Tonawanda Reservations, but the Cattaraugus and Alle-

gany Reservations were retained by the Seneca. Treaty

with the Seneca, May 20, 1842, 7 Stat. 586. See Fellows v.

Blacksmith, 60 U.S. 366, 370 (1856). The Tonawanda

Reservation was subsequently restored in the Treaty with

the Seneca Tonawanda Band, November 5, 1857, 11 Stat.

735. See State ex rel. Cutler v. Dibbler, 52 U.S. at 370.

Today, the Seneca continue to reside on the Cattaraugus,

Allegany, and Tonawanda Reservations.

In the Tuscarora agreement, Ogden and Fellows also

purchased the Tuscarora Reservation in Niagara County.

This agreement was similarly made in the presence of and

approved by a federal commissioner. Like the Seneca, the

Tuscarora almost immediately protested the treaty as

fraudulent. See New York Indians, 170 U.S. at 5 n.l,

Finding 11. In 1849, the Tuscarora Chiefs brought a

lawsuit in state court against the successors to Ogden and

Fellows seeking a surrender and cancellation of the deed

because the expected removal under the 1838 treaty never

occurred. The state court canceled the deed, see H. Doc.

No. 1590, 63rd Cong., 3rd Sess. 12-13 (1915); Cohen,

Handbook of Federal Indian Law at 423, n.79, and the

Tuscarora continue to reside on the Tuscarora Reservation.

See F PC. v. Tuscarora Indian Nation, 362 U.S. 99.

“The remaining provisions of the 1838 Treaty ccatinued to be

applicable to the Senecas, see Fellows v. Blacksmith, 60 U.S. at 370, but

the time for removal was extended until 1846, see The New York

Indians, 72 U.S. 761, 770 (1866). This interpretation confirms the

voluntary (or non-mandatory) nature of the 1838 Treaty. The Senecas

could retain their Allegany and Cattaraugus Reservations in New York,

yet still choose to move to Kansas.

29

By 1846, few Indians had removed to the Kansas

lands and the Indian commissioner called a council of the

Seneca, Cayuga, Onondaga, and Tuscarora to “learn the

final wishes of the Indians as to emigration.” See New York

Indians, 170 U.S. at 5 n.1, Finding 13. The commissioner

reported that the chiefs were “unanimous in the opinion

that scarcely any Indian who wished to emigrate re-

mained.” Jd. By 1860, the United States returned the

Kansas lands to the public domain, and surveyed and sold

them, id., Finding 15, making removal impossible after

that time.

The Buffalo Creek Treaty undoubtedly established a

process and the means for the New York Indians to move

to Kansas, if the Indians chose to so move. As a factual

matter, however, only a few individuals actually moved to

Kansas, and the tribes continued to reside, and still reside

on their New York reservations.” Thus, the reservations

for the New York Indians secured by the Treaty of Canan-

daigua and similar federal treaties were not abolished by

the Buffalo Creek Treaty.

CONCLUSION

For these reasons, amici support Respondents Oneida

Indian Nation of New York et al. and urge the Court to

affirm the judgment below.

” The treaty did not disturb the St. Regis Mohawks’ title or

occupancy of their reservation on the St. Lawrence River. In a supple-

ment to the Treaty dated February 13, 1838, 7 Stat. 561, St. Regis

assented to the Treaty provided: “that any of the St. Regis Indians who

wish to do so, shall be at liberty to remove to the said country [Kansas]

at any time hereafter within the time specified in this treaty, but under

it the Government shall not compel them to remove.” The Mohawks

never removed and continue to reside on their reservation today.

30

Respectfully submitted,

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