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

REPRINTED COPY - (iw) | ome

AUG 12 2094 |

No. 03-855

annem A EOETHE CLERK. |

IN THE

Supreme Court of the Anited States

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 Petition for a Writ of Certiorari to the

United States Court of Appeals for the Second Circuit

BRIEF OF AMICI CURIAE TOWN OF LENOX,

NEW YORK; TOWN OF STOCKBRIDGE, NEW YORK;

AND TOWN OF SOUTHAMPTON, NEW YORK

IN SUPPORT OF PETITIONER CITY OF SHERRILL,

NEW YORK

E. JOSHUA ROSENKRANZ CHARLES G. CURTIS, JR.

HELLER EHRMAN WHITE & Counsel of Record

McAULIFFE LLP HELLER EHRMAN WHITE &

120 West 45th Street MCAULIFFE LLP

New York, NY 10036 One East Main St., Suite 201

(212) 832-8300 Madison, WI 53703

(608) 663-7460

Additional Counsel Listed On Inside Cover

ED

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

TOD M. LASCURETTES

Town Attomey,

Town of Lenox, NY

205 South Peterboro St.

Canastota, NY 13032

(315) 697-9291

STEVEN R. JONES

Town Attomey,

Town of Stockbridge, NY

Route 46

Munnsville, NY 13409

(315) 495-6581

STEPHEN B. BROWN

Town Attomey,

Town of Southampton, NY

116 Hampton Road

Southampton, NY 11968

(631) 287-3065

Counsel for Amici Curiae

QUESTIONS PRES ENTED

Amici will address the following three questions, all of

which are fairly subsumed under the third question presented

for review in the City of Sherrill’s petition for a writ of

certiorari:

1. Whether this Court’s decisions in Oneida /] and

Oneida Il resolved the issues of present-day title and

sovereignty within the Oneida’s 18thcentury New York

reservation.

2. Whether the Oneida’s 18thcentury New York

reservation was either disestablished or, at the very least,

substantially diminished as the lawful and intended result of

the Treaty of Buffalo Creek of January 15, 1838, 7 Stat. 550.

3. Whether, in the eight generations following the 1838

Treaty of Buffalo Creek, the Oneida have lost their remaining

title and sovereignty over most if not all of their original

18th-centt -y reservation, regardless of whether such losses

were contemporaneously authorized under federal law.

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Page

SRD CUTTS ccsssssnittionncnensseaninesnnsstinesitnsineeaninsioel i

ee ITD —cneresssnssennsnssnensenrememiininstimantinamanions Vv

Interest Of The Antic Curiae .....00csecccccscserccssecsssscssesessoeseseees l

Summary Of The Arguiehit ..........cccccsccccorssesscscsesssssessessseeess 3

PI cecrcmsssnssetssrmsnenenmmannnnsemessssnmnnesenneent 6

1. The Issues Of Present-Day Indian Title And

Sovereignty Were Not Resolved In Oneida |

Ra I i ccscsereretarienmnstinnesinngmntmnmmeine 6

A. Most Of The Land Claim Area Involves

Acquisitions That Have Not Yet Been

Addressed By The Courts, And That

Were Approved Both Expressly And

Implicitly By The Federal Government

During The Removal Era ..................ccseeeeeeee 6

B. Oneida I And Oneida II Held Only That

There Was A Justiciable Cause Of Action

For Ancient Wrongdoing, And Did Not

Resolve Issues Of Present-Day Rights

QE TI crescents 10

Il. The Original 18th-Century Oneida Reservation

Was Either Disestablished Or, At The Very Least,

Substantially Diminished Pursuant To The 1838

Treaty Of Buffalo Creek ............ccccccsssssssssssssssessseeee 13

(iti)

iV

Ill. | Whether Or Not The Conveyances Of

Oneida Land And Sovereignty Were

Contemporaneously Authorized Under

Federal Law, They Were Confirmed Through

Decades Of Federal Policy And Inaction.

Any Reversion Of Sovereignty Must Now Be

Undertaken Pursuant To The Remedial

Provisions Of 25 U.S.C. § 465 .0.........cccccscceeseeseeeeees 19

A. The Federal Government’s Long-Standing

Recognition Of State And Local

Sovereignty Over Nearly All Of The

Original Reservation Area Supports A

Determination Of Disestablishment Or

B. The Federal Government Participated In

The Taking Of Both The Oneida’s Lands

And Their Sovereignty With Respect To

Nearly All Of The Original Reservation. -

There Is No Continuing Tribal Sovereignty

Cn 23

& Most Of The Oneida People Abandoned

And Relinquished Any Interests In The

New York Reservation, Which Resulted

At The Very Least In A Proportionate

Diminishment Of The Reservation.............. 26

TABLE OF AUTHORITIES

| Page(s)

Cases

Arizona v. California, 460 U.S. 605 (1983)..........ccccccceeeeee 20

Brendale v. Confederated Tribes & Bands of the

Yakima Indian Nation, 492 U.S. 408 (1989) ...........000. 21

Buttz v. Northern Pac. R.R. Co.,

ees Se riicincenidincarcestasiiiieasrinesitipatisitaapiaiihiaeainmasssiinate 28

Confederated Bands of Ute Indians v. United States,

Be ee Be Gee i ccenctisntcchinetinnnermmapmnnn 16-17

Confederated Salish & Kootenai Tribes v. United

States, 401 F.2d 785 (Ct. Cl. 1968),

cert. denied, 393 U.S. 1055 (1969)............ccccceeeeeeee 24-26

County of Oneida v. Oneida Indian Nation of

New York State, 470 U.S. 226 (1985) ..........cc.ec0008 passim

DeCoteau v. District County Court for the

Tenth Judicial Dist.,

a Ce Gy Gre crctinersrtrneneenecnintinninnnns passim

Felix v. Patrick, 145 U.S. 317 (1892) ........ccccccccccsseessseeeereees 25

Fellows v. Blacksmith,

60 U.S: (19 How.) 366 (1857) .........cccccccceeceeseeeeeeeeeeeees 14

Hagen v. Utah, 510 U.S. 399 (1994).........ccccccceeeeee 15, 17, 21

Heckman v. United States, 224 U.S. 413 (1912)........cccec0008 23

Johnson v. United States, 163 F. 30 (CA1 1908)................. 16

(v)

Leo Sheep Co. v. United States,

GED UE, GE Ca Pe cerccasssssennssseesssessessmnennemnenn 19

Massachusetts v. New York, 271 U.S. 65 (1926)............. 4, 26

ae”

Menominee Indian Tribe of Wisconsin v. Thompson,

161 F.3d 449 (CA7 1998), cert. denied,

SED CE, FE Cee cccnsenccesesiccessnestarssennsnainscesssonenen 14

Navajo Tribe of Indians v. New Mexico,

SED Fe BESS GAD BOOP cccrsencccsncsesssnscessemscessessnssees 26

Nevada v. United States, 463 U.S. 110 (1983)..............cc000e 26

New Jersey v. New York, 523 U.S. 767 (1998) .........c000 26-27

The New York Indians,

Te en ee CD Fe Ce crrrrcestanciertininn 17-18

New York v. Shinnecock Indian Nation,

280 F. Supp. 2d 1 (E.D.N.Y. 2003) .0......ccccsccsssseseeeeees 2

New York Indians v. United States,

Fe eee Be Gee ccrctensescicncconicivcsdeciunsnenenmniinininiiiaaiitania 14

Northwestern Bands of Shoshone Indians v.

United States, 324 U.S. 335 (1945) .....cccccccccceseeseseeeeeees 17

Oneida Indian Nation of New York v.

City of Sherrill, 337 F.3d 139 (CA2 2003)........... passim

Oneida Indian Nation of New York State v.

County of Oneida, 414 U.S. 661 (1974) .....ccccccceeeeees 6-10

vii

Oneida Indian Nation of New York State v.

County of Oneida,

199 F.R.D. 61 (N.D.N.Y. 2000)... ccccceeeeseeeeeees passim

Oneida Nation of New York v. United States,

26 Ind. Cl. Comm. 138 (1971), aff'd in part

and remanded in part, 477 F.2d 939 (Ct. Cl.

UT cccacinncotectssonnmnnantntectbdanvnienmmemnsteibediibininginebineiscsetioeel 6-7

Oneida Indian Nation of New York v. United States,

43 Ind. Cl. Comm. 373 (1978)........ccccccccsseseeeeeeeseeesees 7-9

Oregon Dep't of Fish & Wildlife v.

Klamath Indian Tribe, 473 U.S. 753 (1985)........0c000088 16

Pittsburgh & Midway Coal Mining Co. v. Yazzie,

909 F.2d 1387 (CA10), cert. denied, 498 U.S.

SOE Cee cccccsasteceserscscutpssesnscsnsctesssssentionpensnesssaseets 15,19

Rosebud Sioux Tribe v. Kneip,

ID UE, SG CIF i Pcccssccscnssscessccnssssscsccsssnsscsessessines passim

Shore v. Shell Petroleum Corp., 60 F.2d 1 (CA10),

cert. denied, 287 U.S. 656 (1932).....cssseeeereeeeeees 28-29

Solem v. Bartlett, 465 U.S. 463 (1984) ........ccccccceceeeeeeees 1,21

South Carolina v. Catawba Indian Tribe, Inc.,

GIO CB, GO CI cccceenssnesesesssecinccarsstancteemncesnsecsensens 16

South Dakota v. Yankton Sioux Tribe,

SEES CB, FE COG cocscscenssccsesstcscensscsepsasccsssnesnesnees passim

Thompson v. County of Franklin,

987 F. Supp. 111 (N.D.N.Y. 1997)......ccccccscesserenseennenens 20

Vili

Tuscarora Nation of Indians v. Power Auth.,

257 F.2d 885 (CA2 1958), vacated as moot,

ee ee ee ichinrieiteiiceisieahinstarpcicerttaientninaitiebindapiuniabiininsiiinn 7

United States v. Boylan, 265 F. 165 (CA2 1920),

error dismissed, 257 U.S. 614 (1921) .........cccccceeeees 18, 23

United States v. Choctaw Nation,

a A nicrnironceniietntntssneeeinniesenneiiiiediiainaniatiite 14

United States v. Creek Nation, 295 U.S. 103 (1935) ...... 23-24

United States v. Lara, 124 S. Ct. 1628 (2004)... 7

United States v. Minnesota, 270 U.S. 181 (1926)................ 26

United States v. New York Indians,

ne III clisitarisietericintcitatiettntiniieciitshianeinsisiatiinianDiahtas 14

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

ee ee ae 28

United States v. Sioux Nation of Indians,

ee Se Cee cctnnietsnninsitihinrittiniitachintaaiatnitataminintiiaaiateails 26

United States v. Southern Pac. Transp. Co.,

eB iaiceritiininnisinitiniiniaremnetinisicaeaieail 23

United States v. Stone, 69 U.S. (2 Wall.) 525 (1865)........... 26

Virginia v. Maryland, 124 S. Ct. 598 (2003) .........:ccccccceeees 26

Williams v. Chicago, 242 U.S. 434 (1917) ......ccccccceceeeeee 27-28

Yankton Sioux Tribe v. Gaffey,

FE ae 19-20

—

ix

Yankton Sioux Tribe v. United States,

PR dll Cr 25

Treaties, Statutes, And Rules

Treaty of Canandaigua of November 11, 1794,

FE, BP icccernictttieniniccindenrnmninaaiinniteindlildadinns 15, 27-28

Treaty of Greenville of August 3, 1795,

Oe FE cian iciecninsccieninrsieehdinincienaate tiinaaiiasiaaisiidaaeniallaiibianiandinaeiait 27

Treaty of Buffalo Creek of January 15, i838,

0 U8 =e ee oe passim

OL Te) | a 20

BB URES. 6 GD veccasececncsnscnsencvsicscenestessrsstemncserencsesineenn passim

Dawes Allotment Act, ch. 119,

an 19, 29

Indian Trade and Intercourse Act,

1 Stat. 137 (1790) (present version

eutiind at ZB UB. 8 UT FD cccccsccccensscrssscrsscrssssnssswine 7,9

BS CBB © SBD .ccerccnccesccscceserccseccsscnsesesssnsresessssansasvosinsennass 5

Miscellaneous

Brief for United States As Amicus Curiae in County

of Oneida v. Oneida Indian Nation, Nos. 83- —

ee 11

x

Campisi, Jack, The Oneida Treaty Period,

1783-1838, in The Oneida Indian Experience:

Two Perspectives (J. Campisi & L. Hauptman

Horsman, Reginald, Race and Manifest Destiny:

The Origins of | American Racial

Br GORA CIR G Pescccncncesccersnacencersenimasemneseen 13

The Oneida Indian Journey: From New York to

Wisconsin, 1784-1860 (L. Hauptman & L.

ny Othe, Tie vicprcccnenestainbiiabiiitaincipbisatenitgimneiunentl 3

Pritzker, Barry M., A_ Native American

Encyclopedia: History, Culture, and Peoples

Ia ssereassniunininrndiccieneniianiomnesinidanniabansnseninmmstindaddiiticiiadedideien 3

Prucha, Francis P., American Indian Treaties: The

History of a Political Anomaly (1994) 0.0.0.0... 13-14

Prucha, Francis P., The Great Father: The United

States Government and the American Indians —

I crecepsnvevnisesicnnennsneptiinicnssissinelsseiiiiladinisaaieabindimabieiiinina 13

Rogin, Michael P., Fathers & Children: Andrew

Jackson and the Subjugation of the American

PN Ge ieieninttgnececcsibiniticieuneciisintimeiitamemmienitnniinn 13

Satz, Ronald N., American Indian Policy in the

Jacksonian Era (1975) .............0+++- Cocnmmnianmadiidine 13

Shattuck, George C., The Oneida Land Claims: A

RIE CE Gr cececennennscssnsiantatieiptaiiininmnineiities 7

Utley, Robert M., The Indian Frontier of the

American West, 1846-1890 (1984) .........cccccceceeeeeeeeeeeees 13

xi

Wallace, Anthony F.C., Jefferson and the Indians:

The Tragic Fate of the First Americans (1999)............ 13

Weeks, Philip, Farewell, My Nation: The American

Indian and the United States, 1820-1890 (1990).......... 13

INTEREST OF THE AMICI CURIAE'

“When an area is predominately populated by nom

Indians with only a few surviving pockets of Indian

allotments, finding that the land remains Indian country

seriously burdens the administration of State and local

governments.” Solem v. Bartlett, 465 U.S. 463, 471 n.12

(1984). The first two amici are towns within the area

encompassed by the historic boundaries of the Oneida’s 18th

century reservation — boundaries that have been treated as

having been extinguished since at least the Jacksonian era.”

These amici and other area local governments have struggled

in recent years to carry out their responsibilities in the face of

unilateral attempts by the Oneida Indian Nation of New York

to withdraw increasing amounts of purchased land from state

and local taxation, zoning, and other regulatory oversight —

all on the premise that the 18thcentury reservation

boundaries have never been diminished to any extent and that

the entire area is now and always has been “Indian country.”

The other amicus is a town located outside the boundaries of

the Oneida land claim area, but which is keenly interested in

the rules of present-day sovereignty and jurisdiction that

apply in areas subject to ancient tribal claims.’

' This amici brief is presented pursuant to this Court’s Rule 37.4;

the towns’ authorized law officers appear as co-counsel. Pursuant to this

Court’s Rule 37.6, counsel of record for the amici represents that he

authored this brief and that no entity other than the amici curiae, their

members, or their counsel made a monetary contribution to its

preparation or submission. The towns do intend in the future, however,

to seek contributions from other towns in the Oneida land claim area to

offset some of the expenses incurred in preparing and submitting this

brief.

? The Town of Lenox, located in Madison County, was founded in

1809 and had a population of 8,665 as of the 2000 census. The Town of

Stockbridge, also located in Madison County, was founded in 1836 and

had a ation of 2,080 as of the 2000 census.

The Town of Southampton, located in Suffolk County on Long

Island, was founded in 1640 and had a population of 54,712 as of the

2

The Oneida’s unilateral attempts to withdraw lands from -

the local tax base have had a serious impact on the amici’s

budgets and services in recent years.* In addition, as this

Court has recognized, creating “Indian country” sovereignty

in “scattered checkerboard fashion over a territory otherwise

under state jurisdiction” will “obviously” result in “many

practical and legal conflicts between state and federal

jurisdiction with regard to conduct and parties having

mobility over the checkerboard territory.” DeCoteau v.

District County Court for the Tenth Judicial Dist., 420 U.S.

425, 429 n.3 (1975). This is particularly so where, as here,

the layout of the checkerboard is left entirely to the discretion

of the Nation; sovereignty, jurisdiction, and regulatory

authority over any given parcel of land supposedly change

hands simply through an open- market transaction. This has

resulted in the Nation being able to cherry pick whatever

lands it wishes — including gas stations, convenience stores,

shopping centers, marinas, and other key commercial

properties — and then unilaterally purporting to declare their

immunity from state and local taxation and regulation. It is

difficult if not impossible for local governments to carry out

their home rule powers and statutory mandates in the midst

of the ensuing chaos and uncertainty.

2000 census. The Town’s borders iriclude lands held by the Shinnecock

Indian Nation, which is not a federally recognized tribe. See New York v.

Shinnecock Indian Nation, 280 F. Supp. 2d 1 (E.D.N.Y. 2003).

* Although the Oneida Indian Nation makes “goodwill” grants to

affected local governments, these are entirely voluntary, may be withheld

at any time at the Nation’s sole discretica, and im any event are

insufficient to make up for the true lost @x revenues. For example,

earlier this year the Nation withheld it» annual $120,000 grant to the

Stockbridge Valley Central School [¥strict because the District declined

to fire an employee that the Nadon wished to have terminated; the

District took the position that 2 fund donor may not influence personnel

matters in this manner. The District is now in fiscal chaos.

3

SUMMARY OF THE ARGUMENT

As Senior Judge McCurn emphasized in his pathmarking

opinion on claims against private landowners in the Oneida

land claim area, “the real task at hand” is to determine “how,

in the 21st century, to reconcile the Indians’ interest in their

homelands with those of current landowners who,

understandably, also view the claim area as_ their

‘homeland.”” Oneida Indian Nation of New York State v.

County of Oneida, 199 F.R.D. 61, 93 (N.D.N.Y. 2000). It

has been eight generations since the United States and the

Oneida entered into the Treaty of Buffalo Creek of January

15, 1838, 7 Stat. 550. To treat the Oneida’s entire 18th

century reservation as having escaped the effects of the 1838

removal treaty and as still being “Indian country” today is to

pretend that the events of the last two centuries did not occur.

It ignores the purpose and effect of Indian removal — the

official law of the land’ for much of the 19th century. It

ignores the language and clear Congressional purposes

behind the 1838 treaty. It ignores the facts that about 85% of

the Oneida people did leave New York during the removal

era, that only about 5% of the Oneida people live there today,

and that the current population of the area embraced by the

old reservation boundaries is over 99% non-Oneida.* And it

* There were 600 Oneida in ‘Visconsin and 620 in New York at the

time of the 1838 treaty, the Wisconsin Oneida having removed from New

York beginning in the early 1820s. See Schedule A to the treaty, 7 Stat.

at 556. The number of Oneida remaining in New York dwindled to 178

by the carly 1840s. See Jack Campisi, The Oneida Treaty Period, 1783-

1838, in The Oneida Indian Experience: Two Perspectives 61 (J.

Campisi & L. Hauptman eds., 1988). The numbers are even more

lopsided today; less than 5% of the Oneida people live in New York. See

Barry M. Pritzker, A Native American Encyclopedia: History, Culture,

and Peoples 443 (2000) (as of the early 1990s there were 11,000 Oneida

in Wisconsin, 4,600 in Ontario, and about 700 in New York). On the

origin, execution, and legacies of the Oneida removal, see generally The

Oneida Indian Journey: From New York to Wisconsin, 1784-1860 (L.

Hauptman & L. McLester eds., 1999).

4

ignores the last 166 years of ‘jurisdictional history,” in which

the federal government has consistently until recent years

recognized state and local sovereignty over the lands in issue,

with the exception of the dwindling number of tribal

allotments that remained in trust.°

Indian nations, no less than other sovereigns, are subject

to the rule that “[long acquiescence in the possession of

territory and the exercise of dominion and sovereignty over it

may have a controlling effect in the determination of a

disputed boundary.” Massachusetts v. New York, 271 U.S.

65, 95 (1926). Pretending that reservation boundaries that

were drawn in the 1780s are still in effect today without any

adjustment — unfair and tragic though the intervening

centuries have been in so many respects — would be like

pretending that England never lost the colonies; that the

Dutch never lost New York to the English, or that France and

Spain have nghts today on the North American continent.

Respecting long-established patterns of sovereignty,

jurisdiction, and regulatory authority does not leave the

Oneida without a means of either recovering for any treaty

violations they are able to demonstrate in the ongoing land

claim litigation or establishing sovereignty over recently

purchased lands. As Senior Judge McCurn held on remand

from this Court’s decision in County of Oneida v. Oneida

Indian Nation of New York State, 470 U.S. 226 (1985)

[“Oneida IT’), the Oneida are entitled to recover historically

adjusted monetary damages for any treaty violations they are

able to establish (subject to various pending defenses and

counterclaims that are presently being litigated).’ The

® The land base of the Oneidas who elected not to remove dwindled

to less than a thousand acres by the carly 1840s, to 350 acres by the

1890s, and to 32 acres by the early 20th century. See Campisi, supra note

5, at 61.

” See 199 F.R.D. at 90-95. Now that the United States has

intervened in the land claim litigation and sued the State of New York,

see id. at 68-69, there is a proper forum to adjudicate the degree of the

a

5

Oneida may use any monetary recovery to purchase

additional lands, and may seek to make some or all of those

lands exempt from state and local taxation by following the

trust acquisition procedures spelled out in 25 U.S.C. § 465

and its implementing regulations, which ensure a judicially

reviewable decision by the Secretary of the Interior that gives

careful consideration to the concerns of all affected

stakeholders, including “{jjurisdictional problems,”

“potential conflicts of land use,” “the impact on the State and

its political subdivisions resulting from the removal of the

land from the tax rolls,” and “whether the Bureau of Indian

Affairs is equipped to discharge the additional

responsibilities resulting from the acquisition of the land in

trust status.” 25 C.F.R. § 151.10(e)-(g).

There is no reason why the § 465 trust acquisition

mechanism could not be included as part of any final

resolution of the underlying land claim (whether through

settlement or a judicial decree). The Oneida have offered no

explanation why it would be futile or impracticable to use

this available remedial mechanism. Particularly in light of

the eight generations of delay since the 1838 treaty and the

reliance interests of the many other stakeholders in the land

claim area, there is no good reason to recognize the Oneida’s

unilateral attempts to exercise self-help remedies in the midst

of ongoing litigation in which the underlying merits have yet

to be resolved. If the Oneida’s sovereign landbase is to be

rebuilt, it must be pursuant to the intergovernmental planning

mechanisms created under 25 U.S.C. § 465, not through

unilateral declarations of sovereignty over checkerboard

acquisitions that are cherry-picked off the open market.

federal government's culpability for the events in ssue, and to establish

(through counterclaims for setoff and recoupment) the amount of the

relative financial responsibility of the United States for the Oneida’s

losses, which can then be presented to Congress.

6

ARGUMENT

I. The Issues Of Present-Day Indian Title And

Sovereignty Were Not Resolved In Oneida I And

Oneida II.

The Oneida and the federal government will argue that

the issues of current Indian title and sovereignty throughout

the original reservation have already been resolved — either

expressly or by necessary implication — in Oneida Indian

Nation of New York State v. County of Oneida, 414 U.S. 661

(1974) [“Oneida I}, and Oneida II. That argumert misses

the mark in at least two fundamental respects.

A. Most Of The Land Claim Area Involves

Acquisitions That Have Not Yet Been

Addressed By The Courts, And That Were

Approved Both Expressly And Implicitly

By The Federal Government During The

Removal Era.

The orginal 18thcentury Oneida reservation was

acquired by the State and private parties through a series of

some thirty transactions that extended through eleven

Presidencies — from the second Washington Administration

(1795) through the Polk Administration (1846).° This

Court’s opinions in Oneida | and Oneida // involved only the

first of these transactions, in which the Washington

Administration objected to New York’s acquisition in 1795

of part of the reservation from the Oneida. See 470 U.S. at

232-33. The Oneida and the federal government would have

this Court conclude that the resolution in Oneida / and

Oneida II with respect to a “test case” involving fewer than

900 acres of the 1795 acquisition — a case decided on a

* The transactions are summarized in Findings of Fact (FOF) #4 6

28 in Oneida Nation of New York v. United States, 26 Ind. Cl. Comm.

138, 150-62 (1971), aff'd in part and remanded in part, 477 F.2d 939 (Ct.

Cl. 1973).

7

limited set of affirmative defenses — dictates the outcome as

to all other acquisitions that followed over the next 5i years

and somehow forecloses other affirmative defenses that have

never been addressed.

But as this Court observed just last Term, “the

Government’s Indian policies ... fluctuate[d] dramatically as

the needs of the Nation and those of the tribes changed over

time,” often with “tragic consequences.” United States v.

Lara, 124 S. Ct. 1628, 1634 (2004). This case demonstrates

the point. As the Indian Claims Commission found 26 years

ago after an exhaustive analysis, the Washington

Administration’s objection in 1795 “was the last time that the

Federal Government would make even a pretense of

interfer[ing] with New York State’s attempts to negotiate

treaties for land cessions with any of the New York Indians,

and certainly with the Oneida Indians.” Oneida Indian

Nation of New York v. United States, 43 Ind. Cl. Comm. 373,

385 (1978); see id. at 395. Instead, beginning in the early

1800s and extending into the 1970s, it was the position of the

Executive Branch that the Indian Trade and Intercourse Act

was “not applicable to cases ... in which the State of New

York [was] purchasing or condemning land from its own

resident Indians.” 26 Ind. Cl. Comm. at 146 (quoting U.S.

position).? As the ICC summarized the historical record,

° See also July 1, 1968 Letter from Assistant Secretary of the

interior Harry R. Anderson to Jacob Thompson, reprinted in George C.

Shattuck, The Oneida Land Claims: A Legal History 115-16 (1991)

(reiterating long-standing position of the Department of Justice and

Department of the Interior that the Trade amd Intercourse Act did not

apply “to the dealings of the State of New York with its Indians”);

Tuscarora Nation of Indians v. Power Auth., 257 F.2d 885, 889 (CA2

1958) (“(A] large measure of social and economic intercourse relating to

Indian tribal matters in the Stave of New York has been left to the State of

New York through either the indifference or approval or express

authorigation of the federal executive officals who at a particular time

had the responsibility for the:care of the indians.”) vacated as moot, 362

U.S. 608 (196)

New York’s ongoing acquisition of Oneida reservation lands

during the removal era was undertaken with the full

knowledge and enthusiastic approval of the federal

_government:

“Far from an ongoing struggle for suprem[a]cy

between the Federal Government and the State of

New York as to the jurisdiction over New York’s

Indians ..., responsible official[s] of the Federal

Government actually expressed the opinion that New

York had the paramount rights to control the affairs

of the Indians within its borders. ... [The historical]

record indicates that the Federal Government was

fully aware of New York’s negotiations with the New

York Indians at all times. The record also indicates

that the United States had no desire to take any action

to prevent New York from doing what would

otherwise have been the Government’s job, i.e.,

buying lands from the New York Indians in order to

persuade them to move west. The Federal

Government’s removal policy applied not just to New

York State, but to the entire Atlantic seaboard. In

New York State the state was carrying out [that]

policy with very little Government help and that

evidently was much to the liking of the Federal

Government. ... /n carrying out its general removal

policy the Government required cessions to itself of

lands in Georgia from the Indians in that state, but it

had no need to do so in New York State, because New

York was doing it for them.” 43 Ind. Cl. Comm. at

405-06 (emphasis added, paragraph breaks omitted).

‘© In at least two instances (1798 and 1802), the United States

expressly approved the acquisitions. See, ¢.g., 470 U.S. at 246-47 & nn.

19-20; 43 Ind. Cl. Comm. at 387. Thereafter, the approval was implicit;

responsible federal officials participated im the events surrounding the

acquisitions, were kept advised of developments, and facilitated the

Oneida’s removal, without ever objecting to New York's negotiation or

9

As the ICC further held after examining the pertinent

records, the 1838 Treaty of Buffalo Creek was negotiated on

the basis of this shared understanding — that the Oneida

should deal directly with New York, without federal

supervision, in disposing of their remaining lands:

“It is apparent that the negotiators for the Federal

Government ... felt that political jurisdiction over the

tribes and the real fee in the land belonged to the

State of New York and was not in the Federal

Government. With respect to the Oneida Indians who

were partly in Madison County and partly in Oneida

County, one of the Treaty Commissioners, Federal

Indian Agent Gillet, advised the Commissioner of

Indian Affairs that the fee title to the land was in the

State of New York and therefore the Oneidas would

have to make a treaty with the Governor of New York

State relinquishing their interest in those lands.” /d.

at 403-04; see also id. at 460-61 (FOF 4 56).

The United States has previously conceded, and the ICC has

specifically held, that the 1838 treaty authorized New York

to acquire the Oneida’s remaining reservation lands in direct

transactions with the dwindling remnants of the tribe. See id.

at 385, 406-07, 466.

This history is important in two cr-tical respects. First, it

belies the Oneida’s claim that the entire 18thcentury

reservation was illegally conveyed between 1795 and 1846.

The judicial determinations that have thus far been made

concerning a single transaction that occurred during the

Washington Administration do not establish the illegality of

execution of the land acquisitions. As the ICC summarized, with the

exception of a single 1819 memorandum, “[n]o more was heard of the

Indian Trade and Intercourse Act in the correspondence, memorials and

other official documents relative to the sale of New York Indian lands to

the State of New York and the removal of the Indians to the west{.J” 43

Ind. Cl. Comm. at 395; see also id. at 392-95; id. at 423-39 (FOF ¥ 47-

49), 441-44 (FOF 4 51), and 446-63 (FOF 4 54-56).

10

later conveyances during the Jefferson, Madison, Monroe,

Adams, Jackson, Van Buren, Harrison, Tyler, or Polk

Administrations — especially where the State of New York

was simply carrying out a cooperative policy with the active

blessing of many of those Administrations pursuant to a

shared understanding of the governing law. Second, this

history must be given substantial weight in determining the

extent of appropriate rights and remedies in the 21st century

for allegedly illegal acquisitions of tribal lands that occurred

during the 18th and 19th centuries. As this Court has

emphasized, federal acquiescence in a State’s assumption of

jurisdiction not only is relevant in construing the underlying

treaty or statute in issue, but “has created justifiable

expectations” that deserve independent respect and

protection. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 605

(1977); see Part Ill infra.

B. Oneida I And Oneida II Held Only That

There Was A Justiciable Cause Of Action

For Ancient Wrongdoing, And Did Not

Resolve Issues Of Present-Day Rights And

Remedies.

Both the majority and the dissent in Oneida I] remarked

upon “the extraordinary passage of time” in the land claim

litigation. 470 U.S. at 256 (Stevens, J., dissenting); see also

id. at 253 (“One would have thought that claims dating back

for more than a century and a half would have been barred

long ago.””). The majority, however, held that the Oneida had

a justiciable cause of action for the 1795 conveyance and also

rejected certain affirmative defenses that the counties had

raised (while holding open other potential defenses). See id.

at 233-50.'' The majority did not hold that the Oneida have

'' For example, the majority expressly reserved judgment on the

equitable defense of laches, see 470 U.S. at 244-45, as well as other

“equitable” limitations on any final relief, id. at 253 n.27. In addition,

although the majority rejected the argument that subsequent federal

11

continuing title and sovereignty over the disputed lands, and

it expressly reserved all questions of remedy in any future

proceedings “should Congress not exercise its authority to

resolve these far-reaching Indian claims.” /d. at 253 n.27.

Regrettably, Congress has not in the two decades since

Oneida II come close to resolving these long-standing

claims. Instead, after years of inaction, the federal

government in 1998 joined the three Oneida tribes in seeking

to add claims for trespass, ejectment, and monetary damages

against a defendant class of 20,000 landowners in the land

claim area. This litigation tactic was a shocking departure

from long-standing assurances by both the federal

government and the Oneida, and was rejected in a significant

opinion by Senior Judge McCurn in September 2000. Note

in particular Judge McCurn’s blistering analysis of the

federal government’s “extremely detrimental” role in this

litigation in the years since Oneida II.'? With respect to the

scope of this Court’s prior decisions, Judge McCurn

emphasized that “there is a sharp distinction between the

existence of a federal common law right to Indian homelands

and how to vindicate that right — a distinction which in the

court’s opinion must be drawn, especially given that the

alleged wrong in this case occurred more than 200 years —

ago.” 199 F.R.D. at 90 (emphasis in original); see id. at 66.

treaties in 1798 and 1802 had retroactively “ratified” the 1795

conveyance, id. at 246-48, no defenses were litigated involving the

prospective effects of the 1838 Treaty of Buffalo Creek and the removal

of over 85% of the Oneida from New York between 1820 and 1845. The

United States recognized in Oneida // that numerous “additional

considerations not raised by petitioners might bar recovery or limit relief

in other cases” — including the 1838 treaty. Brief for United States As

Amicus Curiae in Nos. 83-1065 and 83-1240, at 28; see id. at 28-40.

'2 199 F.R.D. at 87; see also id. at 68-69 (criticizing the federal

government’s “inexplicable delay” in the land claim litigation and its

“head-in-the-sand attitude”); id. at 71 n9 (re “cavalier attitude” by

federal government that “has pervaded this litigation and settlement

efforts”); id. at 85-87.

12

Judge McCurn held that the Oneida could recover

historically adjusted monetary damages for _ their

dispossession, but could not seek to eject or recover damages

from present landowners. See id. at 87-95. He relied heavily

on this Court’s “impossibility” cases in holding that the

Oneida may not seek ejectment as a remedy for ancient

wrongs:

“These practical concerns as to the impossibility of

restoring Indians to lands formerly occupied by them

resonate deeply with this court. Such concerns are

magnified exponentially here, where development of

every type imaginable has been ongoing for more

than two centunes — significantly longer than in

[other cases in which the Supreme Court found the

requested relief to be time-barred]. ... [T]he time

has come to transcend the theoretical. The present

motions cry out for a pragmatic approach.” /d. at 92.

As set forth below, amici believe this same kind of

pragmatic, equitable approach is required in resolving the

Oneida’s present claims to continuing sovereignty over lands

from which they removed early in our Nation’s history. Put

another way, although the time-based concerns discussed by

the dissent in Oneida I] may not have been sufficient to

extinguish the entire tribal cause of action, it is perfectly

appropriate to give them substantial weight in deciding

whether and to what extent the Oneida still have rights in the

disputed lands and, if so, how those nights are best vindicated

in the least disruptive manner with the greatest respect for the

rights of all affected stakeholders. The Second Circuit in this

case dismissed the relevance of the “impossibility” doctrine,

restricting it to issues of possession and title, not sovereignty.

See 337 F.3d 139, 156-58 (CA2 2003). This gives far too

little weight to the importance of sovereignty over land; if

anything, long-standing patterns of sovereignty, jurisdiction,

and regulatory authority should be subject to greater

certainty and repose than matters of title and use rights in

land. See Part III infra.

——$—$

13

Il. The Original 18th-Century Oneida Reservation

Was Either Disestablished Or, At The Very Least,

Substantially Diminished Pursuant To The 1838

Treaty Of Buffalo Creek.

Amici fully agree with the City of Sherrill and other

amici that the Oneida reservation in New York was either

entirely disestablished or, at the very least, substantially

diminished as the lawful and intended result of the 1838

Treaty of Buffalo Creek. This treaty was the New York

manifestation of the federal government’s “removal” policy —

“the dominant feature of U.S. Indian policy” in the years

between the War of 1812 and the Mexican War.'* The

removal policy was unfair to the tribes and was premised on

unacceptable notions about the impossibility of Indians and

normIndians living together, but the changes wrought by the

treaties and statutes from that era must be recognized and

given effect unless and until overturned by Congress and the

President. See South Dakota v. Yankton Sioux Tribe, 522

U.S. 329, 357 (1998) (although the “guiding philosophy” of

‘> Robert M. Utley, The Indian Frontier of the American West,

1846-1890, at 37 (1984) (“Throughout the 1830s and 1840s the eastern

Indians were uprooted and moved westward. Some fifty thousand people

made the trek, many at great cost in suffering, hardship, and

impoverishment. They yielded 100 million acres of eastern homeland in

return for 32 million western acres and 68 million dollars in annuity

pledges.”). For additional works discussing the origins and execution of

the federal removal policy, see, e.g., Reginald Horsman, Race and

Manifest Destiny: The Origins of American Racial Anglo-Saxonism 189-

207 (1981); Francis Paul Prucha, The Great Father: The United States

Government and the American Indians 179-314 (1984); Francis Paul

Prucha, American Indian Treaties: The History of a Political Anomaly

156-207 (1994); Michael P. Rogin, Fathers & Children: Andrew

Jackson cnd the Subjugation of the American Indian (1975); Ronald N.

Satz, American Indian Policy in the Jacksonian Era (1975); Anthony

F.C. Wallace, Jefferson and the Indians: The Tragic Fate of the First

Americans (1999); Philip Weeks, Farewell, My Nation: The American

Indian and the United States, 1820-1890, at 1-71 (1990).

14

°° “

the allotment era has been “repudiated,

effect” to laws from that time).'*

Without repeating arguments in other briefs, amici call

the Court’s attention to several broader flaws in the Oneida’s

. 46

1838 treaty analysis:'

(a) The Oneida argued below, and the Second Circuit

accepted, that a reservation may not be found to have been

disestablished or diminished unless the treaty or other law

included particular real estate language of immediate cession

or restoration. See 337 F.3d at 161, 163. This argument

relies entirely on cases involving allotment-era land

conveyances, where the federal government had an interest

(the night of preemption) to which precise language of real

estate cession was relevant, and seeks to read the context of

those cases back onto Indian claims within the 13 onginal

States, where the federal government did not hold the nght of

preemption and therefore real estate language of cession in a

treaty would be irrelevant. If anything, the language used in

the 1838 treaty communicates much more powerfully than

any title language a disestablishment of tribal sovereignty in

Central New York State. If relatively dry real estate

we must give

'* See also United States v. Choctaw Nation, 179 U.S. 494, 532-38,

541 (1900); Menominee Indian Tribe of Wisconsin v. Thompson, 161

F.3d 449, 463 (CA7 1998) (Harlington Wood, J., concurring) (courts

cannot “renegotiate or rewrite the treaty or history, nor can we erase other

relevant factors from the slate in order to satisfy this present generation”)

(re effect of Midwestern removal treaties), cert. denied, 526 U.S. 1066

(1999).

'S The Oneida argued below that the 1838 treaty is void and

unenforceable. But the President, the Senate, and this Court have always

treated Buffalo Creek as a valid treaty, and the Oneida themselves

collected money from the United States on the premise that the treaty is

binding and enforceable. See generally United States v. New York

Indians, 173 U.S. 464, 469-70 (1899); New York Indians v. United States,

170 U.S. 1, 5 n.1 (1898) (re ratification and proclamation of 1838 treaty);

Fellows v. Blacksmith, 60 U.S. (19 How.) 366, 372 (1857); Prucha,

American Indian Treaties, supra note 13, at 203-07.

15

language during the allotment era was “precisely suited” to

terminating Indian sovereignty, DeCoteau, 420 U.S. at 445,

so much more the case for treaty language in which a tribe

agreed to “remove” to the western “Indian Territory” and to

establish its new “home,” “government,” and “laws” out

there. Arts. 2,4, & 13, 7 Stat. at 551-52, 554.

Moreover, even the cases involving allotment-era

conveyances have emphasized that there is no “clear

statement” rule regarding termination of tribal sovereignty;

“we have never required any particular form of words before

finding diminishment.” Hagen v. Utah, 510 U.S. 399, 411

(1994). The issue, instead, is whether there is a federal intent

with respect to the affected lands that is “inconsistent with

the continuation of reservation status.” Id. at 414 (emphasis

added). As this Court said more recently in Yankton, 522

U.S. at 345-46, the issue is whether the disputed language

can be “reconciled” with the continued existence of the

original reservation boundaries, or whether there is a “glaring

inconsistency” between the new law and the old

reservation.

Here there is a “glaring inconsistency” —-— an

“irreconcilable conflict’ -— between the Treaty of

Canandaigua of November 11, 1794, 7 Stat. 44, and the 1838

Treaty of Buffalo Creek. The earlier treaty had

“acknowledge[d]” the Oneida’s large _ state-created

reservation. Art. 2, 7 Stat. at 45. The 1838 treaty, on the

other hand, said that the Oneida’s “permanent” reservation

'© See also Rosebud, 430 U.S. at 587 & n.4 (issue is whether there

is a “congressionally manifested intent” that “reservation status” not

survive; there are no “absolutes” in determining whether federal action

resulted in a disestablishment of tribal jurisdiction); DeCoteau, 420 U.S.

at 446 (Court looks for language indicating that the lands have been

“stripped of reservation status”); Pittsburgh & Midway Coal Mining Co.

v. Yazzie, 909 F.2d 1387, 1420 (CA10) (“Cession language ... need not

be the only language clearly signaling the cancellation of reservation

boundaries .”), cert. denied, 498 U.S. 1012 (1990).

16

would be out west, that they had to establish their own form

of “government” and own “laws” out there, and they had to

leave New York ‘us soon as” — not “if’ — they could make

“satisfactory arrangements.” Arts. 2, 4 & 13, 7 Stat. at 551-

52, 554 (emphasis added). Even giving a generous

construction to the August 9, 1838 “solemn{[] assur[ance]” by

Agent Ransom H. Gillet, the Oneida agreed in 1838 that they

either had to leave the eastern United States or that they

would remain on ‘their lands where they reside” and could

“if they choose to do so remain where they are forever.”

Joint Appendix [JA] 146 (emphasis added). These

agreements necessanly operated to release and extinguish

any claims of tribal sovereignty over New York lands on

which the Oneida did not reside as of 1838. The contrary

construction is simply unimaginable given the context and

tenor of the times. To conclude that the sweeping terms of

the 1838 removal treaty could somehow be read as a

reaffirmation of the reservation boundaries drawn fifty years

earlier in the 1788 state treaty — a result that would lead to

the very jurisdictional and cultural conflict and chaos that the

removal policies were intended to eliminate — is to disregard

Congress’s core purposes. “[A]s Mr. Justice Holmes ...

commented, we are not free to say to Congress: ‘We see

what you are driving at, but you have not said it, and

therefore we shall go on as before.”” Rosebud, 430 U.S. at

597 (quoting Johnson v. United States, 163 F. 30, 32 (CAI

1908))."”

'” See also South Carolina v. Catawba Indian Tribe, Inc., 476 U.S.

498, 506 (1986) (“The canon of construction regarding the resolution of

ambiguities in favor of Indians ... does not permit reliance on ambiguities

that do not exist.”); Oregon Dep't of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 753, 774 (1985) (“courts cannot ignore plain language

that, viewed in historical context and given a ‘fair appraisal,’ ... clearly

runs counter to a tribe's later claims”); DeCoteau, 420 U.S. at 447 (“A

canon of construction is not a license to disregard clear expressions of

tribal and congressional intent.”); Confederated Bands of Ute Indians v.

United States, 330 U.S. 169, 180 (1947) (“we cannot, under the guise of

17

(b) The Second Circuit took, in essence, an “all-or-

nothing” approach to the I18thcentury reservation

boundaries: Because the Oneida were not physically

compelled to remove from their home area, and because

small remnants of the Oneida remained in New York on

much-reduced holdings, the Second Circuit declined to find

that the original reservation boundaries had shrunk af all.

See 337 F.3d at 161-64. This reasoning ignores that the

Oneida did agree to “remove” west, that the vast majority did

leave New York during the removal era, that they did sell

most of their remaining holdings pursuant to Article 13 of the

1838 treaty, that the remaining Oneida did not seek to occupy

or control any part of their original reservation other than the

small land holdings they retained, and that over 99% of the

people living within the supposed “reservation” are nom

Oneida. See supra note 5. This Court has repeatedly held

that, even where a reservation may not have been entirely

disestablished, it was at the very ‘east substantially

diminished as a result of the federal laws under scrutiny.

See, e.g., Yankton, supra; Hagen, supra; Rosebud, supra.

However one characterizes the August 9, 1838 agreement

between Age Gillet and the Oneida, it clearly went no

further than the “lands where they reside[d]” and “where they

[were]” as of that time. Under any reasonable construction

of the treaty, particularly in its historical context, the original

reservatior was at least diminished to that extent. '*

interpretation, ... rewrite congressional acts so as to make them mean

something they obviously were not intended to mean”); Northwestern

Bands of Shoshone Indians v. United States, 324 U.S. 335, 353 (1945) (in

construing a treaty, “[w]e stop short of varying its terms to meet alleged

injustices”).

'§ The Second Circuit erred in its reliance on The New York

Indians, 72 U.S. (5 Wall.) 761 (1867), in which this Court invalidated

attempts by New York State to impose taxes on Seneca lands in 1840

through 1843. Article 10 of the 1838 Treaty of Buffalo Creek had given

the Seneca a five-year grace period to remain in New York following the

treaty's ratification, which postponed the removal obligation until 1845

18

(c) The Oneida argued below that, since most of the

original reservation had already been conveyed away by the

time of the 1838 treaty, the treaty could only have had an

effect on those several thousand acres still in the Oneida’s

possession at that time. Even putting to one side that this

argument fails to explain why the reservation was not

diminished at least to the extent of the lands sold pursuant to

the 1838 treaty,” the argument fails on several levels. The

Oneida promised to remove to a new “home” in the “Indian

territory,” where they could practice their own “government”

and “laws,” and to leave New York State “as soon as they

can make satisfactory arrangements.” (Arts. 2, 4, & 13, 7

Stat. at §51-52, 554.) These provisions on their face have a

much broader sweep than the 5,000 acres then being held by

the Oneida in New York. The expressed purpose of the 1838

treaty was to remove the Oneida from the entire State of New

York. It would be irrational in light of that purpose to give

the treaty such a narrow construction and application.

(the treaty not having been proclaimed until 1840); the removal

obligation was thereafter rescinded completely with respect to two of the

Seneca reservations that were the targets of the state tax. This Court held

that because “[t}he time for the surrender of the possession, acccrding to

[the Senecas’] consent given in the [1838] treaty, had not expired when

these taxes were levied” in the early 1840s, “[t}he taxation of the lands

was premature and illegal.” /d at 770. This case involves the very

different issue of continued claims of tribal sovereignty long after any

transitional pennods had passed and after nearly all of the lands had been

sold away and all but a few of the Oneida had removed from New York

State, as promised in the treaty. Similarly, United States v. Boylan

involved only the 32-acre parcel that was occupied by a remnant of the

original tribe after the removal policy had been carried out; there is not a

hint m that decision of any kind of retained tribal sovereignty over the

entire original reservation. See 265 F. 165, 171-74 (CA2 1920), error

dismissed, 257 US. 614 (1921).

'* As noted above, the ICC has previously determined, and the

federal government has previously conceded, that Article 13 constituted a

federal “authorization” for the State to deal directly with the Oneida in

acquiring the remainder of the reservation. See supra at 9.

19

This Court has specifically held that a federal law can

extinguish reservation status not only over lands actually

conveyed in that hw, but over lands previously disposed of

and to be disposed of in the future. In DeCoteau, for

example, much of the Lake Treverse Reservation was

allotted immediately following the Dawes Allotment Act, ch.

119, 24 Stat. 388 (1887), and the remainder was ceded back

to the federal government through an 1891 act. This Court

held that the entire reservation was terminated by the 1891

act, including the lands that had previously been allotted.

420 US. at 446-47. That is no different than what happened

here.

Ill. Whether Or Not The Conveyances Of Oneida

Land And Sovereignty Were Contemporaneously

Authorized Under Federal Law, They Were

Confirmed Through Decades Of Federal Policy

And Inaction. Any Reversion Of Sovereignty

Must Now Be Undertaken Pursuant To The

Remedial Provisions Of 25 U.S.C. § 465.

This Court has emphasized “the special need for

certainty and predictability” when dealing with long-standing

reliance-based expectations regarding title, boundaries, and

use rights.*' This “special need” is served through the

2° See also Pittsburgh & Midway, 909 F.2d at 1420-21 (“{t}he

restoration of unallotted lands ... cancelled reservation boundaries” over

previously allotted as well as restored lands); Yankton Sioux Tribe v.

Gaffey, 188 F.3d 1010, 1028 (CA8 1999) (Congress in an 1894 cession

act “intended to diminish the reservation by not only the ceded land, but

also by the [previously allotted] land which it foresaw would pass into the

hands of the white settlers and homesteaders” in the future once the trust

restrictions had expired).

*! Leo Sheep Co. v. United States, 440 U.S. 668, 687 (1979)

(“Generations of land patents have issued without any express reservation

of the right now claimed by the Government. Nor has a similar right

been asserted before. ... This Court has traditionally recognized the

special need for certainty and predictability where land titles are

concerned, and we are unwilling to upset settled expectations ....”);-see

20

overlapping doctrines of acquiescence, abandonment,

extinguishment, impossibility, release, and relinquishment, as

well as through long-established principles regarding

“takings” of recognized Indian title by the United States.

The Oneida and the federal government may seek to limit

these doctrines to matters involving title and possession of

land, as opposed to sovereignty over that land. That

distinction is unconvincing for several reasons. First, the

Second Circuit lirked its sovereignty analysis to the

continued, unbroken existence of the Oneida’s “Indian title”

in the disputed lands, reasoning that a given parcel of land

reacquires sovereign immunity from state and local taxation

when “fee title” is reunited with “Indian title.” See 337 F.3d

at 157-58. The doctrines discussed below, however, all

demonstrate that Indian title has not survived the past two

centunes, but has been extinguished and taken. There are no

continuing nghts in taken lands.

Second, Congress did not separate the concepts of Indian

title and sovereignty until 1948, the year it enacted the

definition of “Indian country” in 18 U.S.C. § 1151. Before

then, the extinguishment of Indian title to a given parcel

would have been understood as “also diminishing the

Reservation’s jurisdictional boundaries” to that extent.

Thompson v. County of Franklin, 987 F. Svyp. 111, 124

(N.D.N.Y. 1997); see also Yankton Sioux Tribe v. Gaffey,

188 F.3d at 1022.

Third, stable rules of sovereignty, jurisdiction, and

regulatory authority are, if anything, even more important

than stable property and use nghts. This Court’s cases

recognize that the “justifiable expectations of the people

living in the area” extend not only to matters of title and use,

also Arizona v. California, 460 U.S. 605, 620 (1983) (“Our reports are

replete with reaffirmations that questions affecting titles to land, once

decided, should no longer be considered open.”’); cases cited in notes 24-

26 infra.

21

but to issues of self-government, community planning and

control, effective law enforcement, and the minimization of

unwieldy “checkerboard” jurisdiction. Hagen, 510 U.S. at

421.°* If there should be a reconstruction of “Indien country”

in Central New York State, it must be undertaken pursuant to

the intergovernmental planning mechanisms promoted by

§ 465, not through unilateral cherrypicking and

checkerboard acquisitions of prime real estate on the open

market.

A. The Federal Government’s Long-Standing

Recognition Of State And Local

Sovereignty Over Nearly All Of The

Original Reservation Area Supports A

Determination Of Disestablishment Or

Diminishment.

This Court has noted that, on a “pragmatic level,” it is

sometimes necessary to “acknowledge[] that de facto, if not

de jure, diminishment may have occurred” at some points in

our history. Solem, 465 U.S. at 471; see also Yankton, 522

U.S. at 356. Although demographic evidence alone provides

“the least compelling” justification for a finding of

diminishment, Yankton, 522 U.S. at 356, such a finding is

warranted where demographic evidence is coupled with a

long-standing recognition by the federal government — the

tribes’ guardian — of the primacy of state and local

22 See especially Brendale v. Confederated Tribes & Bands of the

Yakima Indian Nation, 492 U.S. 408, 433 (1989) (opinion of Stevens, J.)

(“Zoning is the process whereby a community defines its essential

character. Whether driven by a concern for health and safety, esthetics,

or other public values, zoning provides the mechanism by which the

polity ensures that neighboring uses of land are not mutually — or more

often unilaterally — destructive.”); id. at 458 (opinion of Blackmun, J.)

(emphasizing that the “ability to engage in the systematic and coordinated

utilization of land” is “the very essence of zoning authority,” and that

zoning “‘may indeed be the most essential function performed by local

government’) (emphasis added, citation omitted).

22

jurisdiction, sovereignty, and regulatory authority over the

lands now in dispute. Rosebud is closely on point. There, an

arguably ambiguous 1904 law was treated by federal and

state officials as having diminished reservation jurisdiction.

Whiting 73 years later, in 1977, this Court concluded that

“the single most salient fact [in the jurisdictional

history] is the unquestioned actual assumption of state

jurisdiction over the [challenged area]. Since state

junsdiction over the area within a _ reservation’s

boundaries is giite limited, the fact that neither

Congress nor the Department of Indian Affairs has

sought to exercise its authority over this area, or to

challenge the State’s exercise of authority is a factor

entitled to weight as part of the ‘jurisdictional

history.” The longstanding assumption of jurisdiction

by the State over an area that is over 90% non Indian,

both in population and in land use, not only

demonstrates the parties’ understanding of the

meaning of the Act, but has created justifiable

expectations which should not be upset by so strained

a reading of the Acts of Congress as petitioner

urges.” 430 U.S. at 603-05 (emphasis added,

citations omitted).

See also Yankton, 522 U.S. at 357 (emphasizing “{t]}he

State’s assumption of jurisdiction over the territory, almost

immediately after the 1594 Act and continuing virtually

unchallenged to the present day”); DeCoteau, 420 U.S. at

442 (“state jurisdiction over the ceded (i.e., unallotted) lands

went virtually unquestioned [from the 1890s] until the

1960s”).

The cited cases involved periods of federal acquiescence

of less than a century. Here the federal government took the

position for over a century and a half that New York had

properly acquired the lands from the Oneida and had lawful

sovereignty and jurisdiction over all but a handful of the

Oneida’s original lands. This extraordinary period of

23

acquiescence is relevant not only because of the light it sheds

on the 1838 treaty’s intended meaning, but because it has

created “justifiable expectations” that must be honored and

protected when seeking to remedy whatever historic wrongs

were comunitted against the Oneida.

B. The Federal Government Participated In

The Taking Of Both The Oneida’s Lands

And Their Sovereignty With Respect To

Nearly All Of The Original Reservation.

There Is No Continuing Tribal Sovereignty

Over Taken Lands.

The case for disestablishment or diminishment of the

Oneida’s sovereignty is reinforced by decisions finding

federal “takings” of reservation lands after a long period of

federal acquiescence in the illegal loss of those lands. To be

sure, it is well-settled that illegal dispositions of tribal lands

could be cancelled even after many years when the lands

were still being held by the original purchasers.” This

Court’s cases establish, however, that where tribal lands were

sold in violation of federal law, the conveyances were

allowed to stand for several generations, and the lands were

settled and developed in reliance on this federal

acquiescence, the lands were “taken” from the tribes. United

States v. Creek Nation, 295 U.S. 103 (1935), is illustrative.

Lands belonging to the Creek were allotted to another Indian

tribe and conveyed to settlers in violation of numerous

federal laws, “and the grantees have since been holding the

23 See, eg., Heckman v. United States, 224 U.S. 413 (1912)

(allotted trust lands that were illegally conveyed between 1904 and 1908

could be recovered from the grantees in an action commenced within

several years of conveyances); Boylan, 265 F. 165 (declaring that 1905

mortgage foreclosure of tribal lar 1 and forced removal of Oneida Indians

had been illegal in ejectment action brought by United States several

years later); see also United States v. Southern Pac. Transp. Co., 543

F.2d 676 (CA9 1976) (railway right-of-way declared illegal in action

brought 90 years after it had first been obtained).

24

same adversely to the Creek tribe.” /d. at 107. This Court

acknowledged that

“the tribe, if free and prepared to proceed in its own

behalf, might have successfully assailed the disposals;

but it was not in a position where it could be expected

to assume that burden .... Plainly the United States

would have been entitled to a cancellation of the

disposals had it instituted suits for that purpose. But,

although having full knowledge of the facts, it made

no effort in that direction. On the contrary, it

permitted the disposals to stand — not improbably

because of the unhappy situation in which the other

course would leave the allottees and settlers. In this

way the United States in effect confirmed the

disposals; and it emphasized the confirmation by

retaining, with such full knowledge, all the benefits it

has received from them.

“We conclude that the lands were appropriated by

the United States in circumstances which involved an

implied undertaking by it to make just compensation

to the tribe.” Id. at 110-11 (emphasis added).

And once tribal lands had been thus “taken” by the

United States, while there continues to be a sovereign

obligation to pay damages there are no continuing tribal

rights in the land. In Confederated Salish & Kootenai Tribes

v. United States, for example, treaty guaranteed reservation

lands had been illegally conveyed to settlers, granted to

railroads, and turned into national forests. 401 F.2d 785, 786

(Ct. Cl. 1968), cert. denied, 393 U.S. 1055 (1969).

Notwithstanding the tribes’ protests, the federal government

had allowed these actions to stand for over 60 years and had

“uniformly” treated the lands as no longer belonging to the

tribes. Rather than seek monetary relief, the tribes argued

that the lands were still theirs and sought possession and an

accounting of profits. See id. Invoking Creek Nation, the

court rejected this theory: the government’s actions had

25

“effected a taking of the plaintiffs’ land. The

Government would not be allowed to escape paying

compensation for the property ...._ By the same token,

the Indians cannot now claim that the lands have

always remained theirs.” Id. at 789 (emphasis

added).

These takings cases are applications of what has

sometimes been called the “impossibility” or

“impracticability” doctrine — the principle that, where Indian

lands have been conveyed in violation of federal law, the

conveyances have been allowed to stand for a long time, and

the lands have passed into the hands of “innumerable

innocent purchasers,” the “restor[ation of] the Indians to their

former rights” in the lands will be deemed a judicially

“impossible” remedy. Yankton Sioux Tribe v. United States,

272 U.S. 351, 357 (1926). In Felix v. Patrick, 145 U.S. 317

(1892), for example, lands that properly belonged to an

Indian claimant were conveyed in violation of federal law.

Over the course of the next thirty years, the lands became

part of the City of Omaha and were “now intersected by

streets, subdivided into blocks and lots,” and filled with

“buildings of a permanent character.” /d. at 334. As this

Court bluntly concluded in rejecting the bene ficial owners'

claims to the lands, “it needs no argument to show that the

consequences of setting [the conveyances] aside would be

disastrous ... and would result in the unsettlement of large

numbers of titles upon which the owners have rested in

assured security for nearly a generation.” /d. at 335.

Although amici acknowledge that these cases are

distinguishable on various grounds, similar concerns apply

here. Because Indian title was taken through the course of

many generations of federal policies and aquiescence, the

Oneida “cannot claim that the lands have always remained

26

theirs.” Confederated Salish & Kootenai Tribes, 401 F.2d at

789,74

Cc. Most Of The Oneida People Abandoned

And Relinquished Any Interests In The

New York Reservation, Which Resulted At

The Very Least In A Proportionate

Diminishment Of The Reservation.

This Court has emphasized that there is “no reason” why

the doctrine of “acquiescence” should not apply to disputes

involving tribal lands, and has analogized to this doctrine in

examining issues of reservation a!ninishment.2° Whether

** See also Nevada v. United States, 463 U.S. 110, 144 n.16 (1983)

(“[i}f in carrying out its role as representative, the Government violated

its obligations to the Tribe, then the Tribe’s remedy is against the

Government, not against third parties” who have acquired water rights in

reliance on earlier decrees); id. at 145 (Brennan, J., concurring) (citizens

have the right to “rely on specific promises made to their forebears two

and three generations ago” by federal officials, but the injured tribe may

seek a takings remedy); United States v. Sioux Nation of Indians, 448

U.S. 371, 409 n.26 (1980); United States v. Minnesota, 270 U.S. 181, 215

(1926) (where reservation lands had been illegally acquired by the State

half a century or more earlier, “the United States is entitled to a decree

canceling the patents-for such as have not been sold by the State and

charging her with the value of such as she has sold” — a recognition that

illegally acquired lands that were long ago sold into private ownership are

no longer subject to Indian title); Navajo Tribe of Indians v. New Mexico,

809 F.2d 1455, 1467 (CA10 1987) (injustices against tribes “would have

to be recompensed through monetary awards” rather than through quiet

title or eyectment actions).

*° See United States v. Stone, 69 U.S. (2 Wall.) 525, $37 (1865) (re

tribal acquiescence in boundary of Delaware Indian Reservation for

“more than thirty years”); see also Rosebud, 430 U.S. at 605 & n.28. See

generally Oneida Il, 470 U.S. at 257 n.S (Stevens, J., dissenting);

Massachusetts v. New York, 271 U.S. at 95-96. This Court has found in

recent Terms that periods of sovereign acquiescence that ran for 43 and

64 years were insufficient under the particular facts of those cases to

establish the defense. See Virginia v. Maryland, 124 S. Ct. 598, 610-11

(2003) (relevant alleged prescriptive period was 1957-2000); New Jersey

v. New York, 523 U.S. 767, 786-90 (1998) (alleged prescriptive period

27

analyzed under the rubric of “acquiescence” or related

principles of “abandonment,” “extinguishment,” “release,” or

“relinquishment,” the removal by most of the original Oneida

Nation away from New York many gererations ago, coupled

with the long-standing acquiescence of the remaining tribal

members and their federal guardians in the exercise of state

and local sovereignty over nearly all of the original

reservation, should be held to have resulted in the

disestablishment of tribal sovereignty and jurisdiction over

all lands not retained by the Oneida.

Williams v. Chicago, 242 U.S. 434 (1917), is illustrative.

The Potawatomi held rights in what is now northeastern

Illinois pursuant to the Treaty of Greenville of August 3,

1795, 7 Stat. 49, a treaty that guaranteed tribal occupancy

rights in similar language to that used in the 1794 Treaty of

Canandaigua (compare Art. 2 of the 1794 treaty with Art. 5

of the 1795 treaty). The Potawatomi sold the area to the

United States in 1833; most of the tribe thereafter removed

west of the Mississippi River, but the small “Pokagon Band”

remained in the Midwest. The Pokagon brought suit in the

early 20th century seeking to recover possession of lands

that, they claimed, had never been included within the earlier

conveyance. They contended that “[iJt is not enough that the

complainants’ ancestors had removed from the vicinity of the

lands in question,” and that “[t]heir removal without sale

does not affect their title.” 61 L. Hi. 414, 416 (argument of

counsel).

This Court unanimously rejected the “removal without

sale” argument. The right recognized in the 1795 Treaty of

Greenville had been one of occupancy alone, not “fee-simple

title.” 242 U.S. at 437.

“If in any view [the Potawatomi Nation] ever held

possession of the property here in question, we know

ran from 1890-1954). Here the prescriptive period ran from no later than

the Van Buren Administration until the Clinton Administration.

28

historically that this was abandoned long ago, and

that for more than a half century it has not even

pretended to occupy [the claimed area]. ... We think

it entirely clear that [the 1795 treaty] did not convey a

fee-simple title to the Indians; that under it no tribe

could claim more than the right of continued

occupancy; and that when this was abandoned, ail

legal right or interest which both tribe and its

members had in the territory came to an end.” Id. at

437-38 (emphasis added).

The 1794 Treaty of Canandaigua did nothing more than

“acknowledge” a state-created right of tribal “use and

enjoyment” and promise to respect that right “until [the

Oneida] choose to sell the [lands] to the people of the United

States, who have the right to purchase.” Art. 2, 7 Stat. at 45.

Even if this created a federal occupancy right, Williams

demonstrates that such a right did not continue after a tribe

had ceased to occupy the actual area in dispute. Just like the

Pokagon Band in Williams, the Oneida “long ago” moved off

all but a handful of the lands and “ha[ve] not even pretended

to occupy” those lands in the generations since. This

constituted an “abandonment” of rights in all lands on which

they no longer lived.*°

*© See also United States v. Santa Fe Pac. R.R. Co., 314 US. 339,

357-88 (1941) (“acquiescence” by tribe in an arrangement in which

members moved to a reduced reservation in exchange for not being

removed from the area altogether “must be deemed to have been a

relinquishment of tribal rights” in all other lands that were “notoriously

claimed by others”; “it cannot now be fairly implied that tribal rights of

the Walapais in lands autside the reservation were preserved”); Buttz v.

Northern Pac. R.R. Co., 119 U.S. 55, 69-70 (1886) (treaty-recognized

title to certain Sioux land in Dakota Territory had been extinguished in

part through the creation and acceptance of an 1867 reservation: “The

Indians had then retired to the reservations set apart for them by the treaty

of 1867, thus giving up the occupancy of the other lands. The

relinquishment thus made was as effectual as a formal act of cession.

Their right of occupancy was, in effect, abandoned{.]”); Shore v. Shell

29

This line of cases — whether labeled “acquiescence,”

“abandonment,” or something else — has two important

consequences here. First, during the removal era, the Oneida

fragmented into various factions, most of which accepted

lands elsewhere in North America and removed entirely from

New York. The Oneida who actually removed from New

York clearly relinquished their New York claims under the

cases discussed above, and the size of any remaining

reservation must accordingly be diminished to reflect these

removals.”’

Second, these principles apply as well to the remnants of

the Oneida community that chose to remain in New York.

The Oneida’s agreement with the federal government in 1838

was to remove west “as soon as they can make satis factory

arrangements with the Governor of the State of New York for

the purchase of their lands at Oneida” — language that, they

were told, would allow them to remain “where they reside”

and “where they are forever,” if “satisfactory arrangements”

could not be made. See JA 146 (emphasis added). Even

giving this language its most generous reasonable

construction, the deal struck through the treaty negotiations

was that the Oneida could remain “where they are” and

“where they reside” (i.e., on the 5,000 acres they still

possessed in 1838), not that they could reassert rights in the

Petroleum Corp., 60 F.2d 1, 3 (CA10) (when Osage “chose to go

elsewhere,” this constituted “a surrender and abandonment” of treaty-

recognized title in their former reservation), cert. denied, 287 U.S. 656

(1932).

i This proportionate reduction is not only fair and equitable on its

own terms, but accords with American history. Under the 1887 Dawes

Allotment Act and similar legislation of that era, reservations were

“allotted” into separate parcels to be held individually, with a cap on

acreage per individual, and with “surplus” lands then sold off. There is

no reason to believe that the remnants of the Oneida that remained in

New York would have escaped this per capita approach had they

somehow managed to hang on to their original reservation lands until the

late 19th century.

30

295,000 acres they had given up in recent generations. The

Oneida who stayed in New York never thereafter sought to

exercise possession or sovereignty over lands their forebears

had previously conveyed. They thereby lost any remaining

rights they may have held in these lands through

acquiescence, abandonment, and relinquishment every bit as

much as the Oneida who moved away from New York.

CONCLUSION

This Court should reverse the judgment below and hold

that the Oneida’s 18thcentury reservation has been

disestablished or, at the very least, substantially diminished.

Any rebuilding of a sovereign Oneida landbase in Central

New York State should be carried out pursuant to 25 U.S.C.

§ 465.

Respectfully submitted,

E. JOSHUA ROSENKRANZ CHARLES G. CURTIS, JR.

HELLER EHRMAN WHITE & ~— Counsel of Record

MCAULIFFE LLP HELLER EHRMAN WHITE &

120 West 45th Street MCAULIFFE LLP ;

New York, NY 10036 One East Main St., Suite 201

(212) 832-8300 Madison, WI 53703

(608) 662-7460

TOD M. LASCURETTES STEVEN R. JONES

Town Attorney, Town Attorney, —

Town of Lenox, NY Town of Stockbridge, NY

205 South Peterboro St. Route 46

Canastota, NY 13032 Munnsville, NY 13409

(315) 697-9291 (315) 495-6581

STEPHEN B. BROWN

Town Attorney,

Town of Southampton, NY

116 Hampton Road

Southampton, NY 11968

(631) 287-3065