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

"Supreme Court, U.S.

FILED

>

@3 SEP 30 20

No. 03-855 OFFICE OF THE CLERK

IN THE

Supreme Court of the Gnited States

CITY OF SHERRILL, NEW YORK,

Petitioner,

ONEIDA INDIAN NATION OF NEW YORK, ef al,

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Second Circuit

BRIEF OF AMICUS CURIAE

NATIONAL CONGRESS OF AMERICAN INDIANS

IN SUPPORT OF RESPONDENTS

RIYAZ A. KANJI

KANJI & KATZEN, PLLC

201 South Main Street

CARTER G. PHILIPS*

VIRGINIA A. SEITZ

MATTHEW J. WARREN

Suite 1000 SIDLEY AUSTIN BROWN &

Ann Arbor, MI 48104-2177 WoOoD LLP

(734) 769-5400 1501 K Street, N.W.

Washington, D.C. 20005

JOHN DOSSETT (202) 736-8000

NATIONAL CONGRESS OF

AMERICAN INDIANS MARK E, HADDAD

851 SW Sixth Avenue SIDLEY AUSTIN BROWN &

Suite 1650 WOOoD LLP

Portland, OR 97204 555 W. Fifth Street

(503) 248-0783 40th Floor

Los Angeles, CA 90013

(213) 896-6000

Counsel for Respondents

September 30, 2004 * Counsel of Record

aE EE aL

WiLSON-Eres “vunTiInG Co., INC. — (202) 789-0086 -— WASHINGTON, D. C. 20001

UBEST AVAILABLE COPY |

TABLE OF CONTENTS

TAREE. GF AAT TRIE 6 UNE ctcocccnsccesesesscccsnsssenenmscremessens

STATEMENT OF INTEREST OF AMICUS CURIAE...

PS CE UNION cccseresessensusamesemstsnssnntannenunsnneneainctiannente

SUMMARY OF ARGUMENT .............:ccsccsssssssesseeesenes

REETISOTII GS cosessasscssccntnnassennsesnnssneninmmnneiamecsaniinnanenien

THE RULE THAT TRIBAL RESERVATION

LANDS ARE EXEMPT FROM STATE AND

LOCAL TAXATION CLEARLY APPLIES

A. The Lands At Issue Are In “Indian Country”.....

B. The Reacquired Lands Are Not Alienable And,

In Any Event, Congress Has Not Authorized

State And Local Taxation ......00:..cccccesssocscssssoeees

C. The Oneida Reservation Was Never Dimin-

gL Soe aS

A FINDING THAT THE TRIBAL LANDS AT

ISSUE ARE IN INDIAN COUNTRY WILL

NOT HAVE THE APOCALYPTIC CONSE-

QUENCES SHERRILL AND ITS AMICI

ee ne Ee

CG a eee cccreccsnseccertnansengneesensennetanncngtemenapesesmennsnnt

(i)

il

TABLE OF AUTHORITIES

CASES Page

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

$22 U.S. $20 (199B)....cccscececscecsccceesecececeseees 6, 7,18, 19

Atkinson Trading Co. v. Shirley, 532 U.S. 648

ITI ioc ininletaleasibasitaaiaideiiditinnaasuenapasanamnesedsenneqneareren 29

California v. Cabazon Band of Mission Indians.

es Se TD ecncesitmcenvesecsccccsnscessecessesserseee )

Cass County v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103 (1998).......ccccccceeeeeeeereeen 7, 23

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

STITT sieetiatstiabiiaeaiiminencipnaneiepbennditiansebiansioncsecineceses 15, 20

Choctaw Nation of Indians v. United States, 318

Be EE ccncnsrnasesteensesenssetensessnantititiencesessece 29

County of Oneida vy. Oneida Indian Nation, 470

TT tain ia etaattnicianlieidnentivoninnnemsouensed passim

County of Yakima v. Confed. Tribes & Bands oj

Yakima Indian Nation, 502 U.S. 251 (1992)....... 7,9

DeCoteau vy. Dist. County Court, 420 U.S. 425

STI iciseeechiseshdeniniinecenianiinbandtatieenendenensanetcnseesnscecsecs 24, 26

Donnelly v. United States, 228 U.S. 243 (1913)..... 18

FPC vy. Tuscarora Indian Nation, 362 U.S. 99

aaah iain iaaeliaicettaamiatidndaneduenntncton ll

Goudy v. Meath, 203 U.S. 146 (1906) .........cccce00 21

Hagen v. Utah, 510 U.S. 399 (1994)......... 24, 25, 26, 28

Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543

TIT obsitsiteatslassehiaticaendineninieaiueenbuemnnniemmememnenemin 4.13

Kan. Indians, 72 U.S. (5 Wall.) 737 ({866) ............ 2,9

Matiz v. Arnett, 412 U.S. 481 (1973) .....ccccccccccccceees 26

Minnesota v. Hitchcock, 185 U.S. 373 (1902)........ 17

Minnesota v. Mille Lacs Band of Chippewa

Indians, 526 U.S. 172 (1999).........0000. 6, 8, 16, 24, 27

Montana v. Blackfeet Tribe of Indians, 47\ U.S.

IIT ciccleesininitestsieennsaindeieaininiatiuniashitacnmmaantasaenine 2,9, 14

Montana v. United States, 450 U.S. 544 (1981) ..... 9,29

iil

TABLE OF AUTHORITIES -— continued

Page

New Jersey v. Wilson, 11 U.S. (7 Cranch) 164

ee 15

N.Y. Indians, 72 U.S. (5 Wall.) 761 (1866)............. 2,9

N.W. Bands of Shoshone Indians v. United States,

Ee 29

Okla. Tax Comm'n vy. Chickasaw Nation, 515

LRT EES a ear nene o 2

Okla. Tax Comm'n v. Sac & Fox Nation, 508

EEE Ee re 12

Oneida Indian Nation v. New York, 860 F.2d

re 13

Oneida Indian Nation v. County of Oneida, 414

Se ee ccictreneectnenstencumnenasionies 3,7, 11, 13, 15

Or. Dep't of Fish & Wildlife v. Klamath Indian

ES 26

Rice v. Olsen, 324 U.S. 786 (1945) .....cccccccccccccceeeeee 21

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

Ean eit bet itetioniseserisiensinaienntinenineniisilaniaitadiniaiciiaiianetueaiatin 24, 26

Seminole Nation v. United States, 3:6 U.S. 286

Irene taanataiatintans 15

Solem v. Bartlett, 465 U.S. 463 (1984) ........... 11, 23, 25,

26, 28

South Dakota v. Bourland, 508 U.S. 679 (1993)..... 24

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

PERSIE steht 8, 21, 24, 27, 28

United States v. Alcea Band of Tilanooks, 329

Aree ne Ce eee 17

United States v. Celestine, 215 U.S. 278 (1909)..... 23

United States v. Creek Nation, 295 U.S. 103

ST hceshateitdibsctaiaanachieeteiaaiatasiadianestiaessiiialaddh dementias 28

United States v. Kagama, 118 U.S. 375 (1886)....... 12

United States v. Santa Fe Pac. R.R., 314 U.S. 339

EE ere 24, 26, 27

United States v. Shoshone Tribe of Indians, 304

EN 4

iv

TABLE OF AUTHORITIES — continued

Page

Washington v. Washington State Commercial

Passenger Fishing Vessel Ass'n, 443 U.S. 658

COO crsncemsenesnseemensnnmniienienimnen 26

Winans v. United States, 198 U.S. 371 (1905)........ 6, 16

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

ee passim

CONSTITUTION, TREATIES, STATUTES, AND

REGULATION

OLS. Caameed, GR. 6, 6 Bo GB, D ccccssesscscsessepsnsecseseseseesen 20

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

en 10

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

BGS Pees 10

Supplemental Article to the Treaty of Buffalo

yyy 27

Act of July 22, 1790, ch. 33, 1 Stat. 137........ 5, 7, 14, 18

Act of June 30, 1834, ch. 161, 4 Stat. 729............... 14

General Allotment Act of 1887, ch. 119, 24 Stat.

FD censcsnnsinsemninsemempmenimemnens aeaemennen 21

Act of May 8,1906, ch. 2348, 34 Stat. 182.............. 21

Indian Reorganization Act of 1934, ch. 576, 48

BR, Ta cnrecerestctensnetnteccmennmmmninionin 22

A 5, 6, 7, 10, 11

On 22

| ee 21

A AEEEP senarinstnmentcasusintaniantemmneneaninnianasmnnnanats 20

WD cenemsneeneienen 2

Gr ae © Ce ccrennertmernmenenmnne 22

LEGISLATIVE HISTORY

American State Papers: Indian Affairs (1832)....... 14

25 J. Cont. Cong. 687 (Oct. 15, 1783).........cccceee 10

33 J. Cont. Cong. 455-63 (Aug. 3, 1787) ............... 14

Vv

TABLE OF AUTHORITIES -— continued

. Page

_ J. Madison, Journal of the Federal Convention

ea eas Niet diteeressicaicinncrinntiacersacictiatenitaieaneteiies 14

SCHOLARLY AUTHORITIES

F. Cohen, Original Indian Title, 32 Minn. L. Rev.

SITET cieieiiecihihetiietisiibiciesth iia aii 4.17

F. Cohen, Handbook of Federal Indian Law

EEE cae new Ee a OR RD passim

R. Clinton, The Dormant Indian Commerce

Clause, 27 Conn. L. Rev. 1055 (1995) ................ 13

R. Clinton & M. Hotopp, Judicial Enforcement of

the Federal Restraints on Alienation of Indian

Land: The Origins of the Eastern Land Claims,

ee i Oe eniiteininieditciacicseriinatsinininsinmiaanii 15

OTHER AUTHORITY

The Federalist No. 42 (Madison) (C. Rossiter ed..

ES eS ER. Te 14

STATEMENT OF INTEREST OF AMICUS CURIAE'

Established in 1944, the National Congress of American

Indians (“NCAI”) is the oldest and largest American Indian

organization, representing more than 250 Indian Tribes and

Alaskan Native villages, including New York tribes. NCAI is

dedicated to protecting the rights and improving the welfare

of American Indians. This case calls for the straightforward

application of longstanding principles regarding treaty

interpretation and tribal tax immunity. However, the City of

Sherrill argues against the application of these principles

based on vastly exaggerated claims of the hardship allegedly

resulting from an adverse decision. While the practical

consequences of the Court's decision here would largely be

confined to New York’s political subdivisions and *ribes,

NCAI and its members have a strong interest in opposing the

abandonment of time-honored principles of Indian law based

on arguments properly addressed to Congress, not this Cowré

INTRODUCTION

Beginning in 1795, New York purchased 300,000 acres of

land reserved to the Oneida Nation (“the Oneida”) in plain

violation of federal law. The Oneida were thereby ousted

from these lands, but never lost their treaty-protected

aboriginal rights of possession. Only the United States could

strip the Tribe of those rights. See County of Oneida v.

Oneida Indian Nation, 470 U.S. 226, 230-34 (1985) (“Oneida

iT’). caren deve nite graced fie igs Mane passed

from New York to third-party purchasers.

adie Gecesain sheen ta cuttzantite tomnes of

conduct have fashioned comprehensive land-claims solutions

' No one other than NCA! made a monetary contribution to the

preparation or submission of this Grief. Counsel of record for both parties

have consented to the filing of (nis brief @micus curiae, and the letters of

cansent twve been filed with the Clerk

2

seeking to balance the interests of tribes and landowners

potentially affected by the States’ illegal actions. Congress

has approved those settlements. See 25 U.S.C. ch. 19. New

York, however, has refused to provide Tribes within its

borders with meaningful redress for its past wrongs. Given

New York’s intransigence, the Oneida decided to purchase

parcels of lost lands in free market transactions at fair market

prices, in order to reactivate the treaty and aboriginal rights

inherent in tribal possession of the parcels, including an

immunity from state and local taxation.

New York, the original lawbreaker in this case, cries foul

on behalf of the third-party interests created by the passage of

time (of course, the Oneida paid third parties fair market price

to take possession). But, the actual goal of New York and its

subdivisions is to retain the long-term benefits of their illegal

conduct — the ability to tax not only non-Indian lands but also

tribal lands in the Oneida reservation. At the end of the day,

New York and its subdivisions should not be permitted to

retain the fruits of their defiance of federal law, and the

Oneida’s reacquisition of wrongfully transferred lands in the

reservation should restore those parcels’ tax-immune status.

Absent express congressional authorization, state and local

governments may not tax tribal lands in an Indian reservation.

See Okla. Tax Comm'n v. Chickasaw Nation, 515 U.S. 450

(1995); Montana v. Blackfeet Tribe of Indians, 47\ U.S. 759,

764 (1985); N.Y. Indians, 72 U.S. (5 Wall.) 761 (1866); Kan.

Indians, 72 U.S. (5 Wall.) 737 (1866). The parcels at issue

are owned by the Oneida; they constitute part of the land

“reserved” to the Oneida “forever” in the 1788 Treaty of Fort

Schuyler (“1788 Treaty”). Pet. App. A136-37. In the 1794

Treaty of Canandaigua (“1794 Treaty”), the United States

“acknowledge[d]” these lands “to be [the Oneida’s] property”

and promised that the same “reservation[] shall remain theirs,

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

States, who have the right to purchase.” /d. at Al4l. The

United States has never terminated the reservation.

3

“Despite Congress’ clear policy” to the contrary, between

1795 and 1846, New York entered into a series of

transactions through which it acquired most of the Oneida

reservation, including the parcels at issue. See Oneida //, 470

U.S. at 232. With a single exception not relevant here, these

transactions occurred without the consent of the United

States. Pet. App. A8-9. To regain possession of these

parcels, the Oneida paid fair market value to non-Indian

landowners in free market transactions. These facts should

end this matter. Illegal transactions cannot and did not

terminaie the Oneida’s aboriginal rights in their reserved

lands, as this Court has already made clear. Oneida //, 470

U.S. at 234. Thus, once the Tribe regained possession, its

~ treaty and aboriginal rights were reinvigorated, including the

parcels’ immunity from state and local taxation.

Sherrill, however, claims that it may tax the parcels at issue

for several reasons: (a) The lands were never part of a federal

reservation and are not otherwise within indian country as

defined by federal law; (b) assuming the lands are part of a

federal reservation and are now tribal lands, they are freely

alienable and thus subject to state and local taxation; and (c)

assuming the lands were part of a federal reservation, that

reservation was diminished or disestablished by the 1838

Treaty of Buffalo Creek.”

NCAI agrees with respondents that Sherrill’s first two

arguments are answered i: large part by Oneida Indian

Nation v. County of Oneida, 414 U.S. 661, 678 (1974)

(“Oneida I’) and Oneida II, where this Court found that after

adoption of the Constitution and enactment of the Trade and

Intercourse Act of 1790 (known as the “Nonintercourse

Act”), sales of land in the precise area were unlawful absent

federal consent. In this brief, however, NCAI independently

shows that application of the fundamental principles of Indian

? NCAI does not address Sherrill’s fourth argument concerning tribal

continuity that is addressed in respondent's brief and the briefs amicus

curiae of the United States and the United Southern and Eastern Tribes.

4

law that govern this case leads to the same conclusions - that

the parcels are part of a federal reservation and thus in Indian

country, and that tribal lands in the reservation are immune

from state and local taxation because the United States has

never authorized such taxation and has never diminished or

disestablished the reservation.

SUMMARY OF ARGUMENT

When the European powers “discovered” North America

and entered into their relationships with North American

tribes, the “discovery doctrine” was the international law

principle which reconciled European concepts of land

ownership and sovereignty with aborigina: possession. See F.

Cohen, Handbook of Federal Indian Law 50-54 (1982 ed.)

(“Cohen Handbook’), F. Cohen, Original Indian Title, 32

Minn. L. Rev. 28, 45 (1947). Pursuant to this doctrine,

discovering European nations possessed the right to exclude

other European powers from discovered lands and the

exclusive rights to purchase Indian lands and to extinguish

aboriginal title. The tribes lost their sovereign right to

conduct foreign relations with other European nations and the

right independently to alienate their lands. See generally

Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 573-74 (1823).

Otherwise, the tribes retained sovereignty in their territory

and an aboriginal right of occupation “as sacred and as

securely safeguarded as is fee simple absolute title.” United

States v. Shoshone Tribe of Indians, 304 U.S. 111, 117

(1938).

The United States Constitution incorporated discovery

doctrine principles by centralizing in the federal government

the exclusive authority to conduct relations with tribes,

including the right to extinguish Indian title and allow the

alienation of tribal lands. The Constitution:

5

confers on Congress the powers of war and peace; of

making treaties, and of regulating commerce with

foreign nations, and among the several states, and with

the Indian tribes. These powers comprehend all that is

required for the regulation of our intercourse with the

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

559 (1832) (emphasis supplied). ]

The tribes were otherwise recognized as sovereign over their

internal affairs and lands. /d at 551-53. In 1790, Congress

exercised its exclusive authority by euacting the

Nonintercourse Act, forbidding trade with Indians (absent

federal authorization) and requiring that all sales of Indian

lands be the product of a federal treaty or convention. See

Act of July 22, 1790, ch. 33, 1 Stat. 137 (codified as amended

in part at 25 U.S.C. § 177).

These principles of federal exclusivity and retained tribal

sovereignty left state and local governments without

jurisdiction over tribal Indians and lands within “Indian

country,” including jurisdiction to tax tribal lands, absent

express federal authorization.

“Indian country” includes, inter alia, “all land within the

limits of any Indian reservation under the jurisdiction of the

United States Government, notwithstanding the issuance of

any patent.” 18 U.S.C. § 1151(a). An express congressional

authorization is an absolute prerequisite to state or local

taxation of tribal land in Indian country. See supra at 2. The

parcels at issue were “reserved” to the Oneida “forever” by

the 1788 Treaty, and that reservation was “acknowledged”

and affirmed by the United States in, inter alia, the 1794

Treaty. As this Court recognized in Oneida II, an illegal

transaction does not alter aboriginal rights of possession; the

Oneida’s possessory rights persisted in the “reserved” lands

unlawfully alienated without federal approval. 470 U.S. at

230-34. In such circumstances, once the tribe pays non-

Indian third parties fair value, the tribe’s repossession of

6

reserved aboriginal lands reactivates the lands’ immunity

from state and local taxation.

Sherrill’s responses are without merit. First, Sherrill claims

that the 1788 Treaty terminated the Oneida’s aboriginal rights

of possession (rather than “reserving” those rights “forever”)

before the Constitution was adopted (though after the

requisite total of nine states, including New York, signed it),

and therefore that the nascent federal government lacked

authority over Oneida lands and the Nonintercourse Act never

applied. Under this view, neither the 1794 Treaty nor any of

the United States’ other agreements with the Oneida could

have established a federal Oneida reservation that is “*Indian

country’” under 18 U.S.C. § 1151 and Alaska v. Native

Village of Venetie Tribal Gov't, 522 U.S. 520, 527 (1998).

This is plainly wrong. Even assuming that during the

period from independence to the effective date of the

Constitution, New York shared with the United States the

right to extinguish aboriginal rights. the tribes retained those

rights unless they actually were extinguished. Although New

York purchased vast Oneida lands before the Constitution

was adopted, the 1788 Treaty plainly did not terminate the

Oneida’s rights of possession in the discrete tract of land

carved from the general cession, but instead explicitly

“reserved” those rights “forever.” This is the clear meaning

of the treaty language. See Winans v. United States, 198 U.S.

371, 381 (1905) (“the treaty was not a grant of rights to the

Indians, but a grant of right from them, — a reservation of

those not granted”). If any doubt existed, the trust obligation

that the colonies inherited from the Crown as discovering

sovereign required that the 1788 Treaty be interpreted as the

Tribe understood it. See Minnesota v. Mille Lacs Band of

Chippewa Indians, 526 U.S. 172, 196 (1999); Worcester, 31

U.S. at 552. The Oneida would not have understood the 1788

Treaty to terminate aboriginal rights; the Treafy “reserved”

rights and the Tribe retained possession.

;

Even if the 1788 Treaty had created a bizarre. new state-

law property interest unrecognizable in its historical and legal

context — simultaneously terminating and reserving the

Oneida’s rights of possession — the Constitution and the

Nonintercourse Act nonetheless provided the United States

with exclusive authority to extinguish the Oneida’s retained

rights. The Act forbids unauthorized sales of tribal lands,

including “to any state, whether having the right of pre-

emption to such lands or not.” Ch. 33, § 4, 1 Stat. at 138. See

Oneida I, 414 U.S. at 678 (Nonintercourse Act codifies the

principle “that the extinguishment of Indian title require[s] the

consent of the United States”).

Sherrill’s alternative formulation — that a reservation is not

within “Indian country” unless it is both set aside and actively

superintended by the federal government — relies on Venetie.

Venetie is inapposite here because it addresses a different type

of “Indian country” — “dependent Indian communities,” 18

U.S.C. §1151(b) - in circumstances where Congress

—_ terminated the federal reservation. See 522 U.S. at

Second, Sherrill contends that, even if the parcels at issue

are in a federal reservation, they are subject to state and local

government taxation until the federal government sets them

aside again. According to Sherrill, the lands must be taxable

because they have become freely alienable: Sherrill’s

apparent belief is that the lands are owned by the Tribe acting

just like any private participant in the commercial

marketplace. The premise and conclusion of this argument

are wrong. Unlawfully-transferred reservation lands restored

to tribal possession by purchase from non-Indian owners are

not alienable without federal authorization under the plain

language of the Nonintercourse Act. Moreover, the decisions

Sherrill cites —- County of Yakima v. Confed. Tribes & Bands

of Yakima Indian Nation, 502 U.S. 251 (1992), and Cass

County v. Leech Lake Band of Chippewa Indians, 524 U.S.

103 (1998) — rested on the Court’s view that Congress

8

expressly authorized both the alienation and taxation of those

lands by statute and that tribal reacquisition cannot repeal the

taxing authorization in a federal statute. Here, in sharp

contrast, no congressional authorization of either sale or

taxation exists; to the contrary, tribal reacquisition remedies

an illegal transaction, restores a tax immunity unlawfully

divested, and reactivates the Nonintercourse Act’s restrictions

on alienability.

Third, Sherrill contends even if the lands at issue were part

of a federal reservation, the reservation was disestablished by

the 1838 Treaty of Buffalo Creek. This Court, however, has

refused to find that a treaty disestablishes a reservation unless

the parties’ agreement to do so is “*clear and plain.” South

Dakota v. Yankton Sioux Tribe, 522 U.S. 329, 343 (1998).

The text of the Treaty of Buffalo Creek by itself defeats

Sherrill’s claim that the Treaty mandated the removal of the

Oneida from their New York reservation to the Kansas

Territory. Moreover, in terms that could not be clearer, the

government agent who negotiated the treaty assured the

Oneida that they would not be compelled to remove and could

“choose to... remain where they are forever.” JA 146; Pet.

App. A35 n.18. Sherrill’s argument (and that of its amici)

amounts to an unsupported contention that the Court should

ignore this dispositive evidence regarding the Treaty’s

meaning. But see Mille Lacs, 526 U.S. at 196. The altered

regional demographics on which Sherrill relies are the result

of unlawful transactions, not the Treaty of Buffalo Creek, and

cannot by themselves work a de facto disestablishment of a

federal reservation.

Sherrill and its amici’s remaining arguments seek to portray

the consequences of this case as so extreme that the Court

cannot apply the federal Indian law principles that govern.

Specifically, they say that state and local governments will

suffer a crippling blow to their tax revenues and overall fiscal

health. Putting aside the extra-legal nature of these

assertions — which should be directed to Congress, not this

9

Court — the argument suffers from several fatal flaws.

Because other States facing New York’s situation have settled

their tribes’ land claims, the practical consequences of the

Court's decision are limited to New York, which could

likewise enter into such an agreement. Further, this case

addresses only the tax-immune status of reservations lands

possessed by the Tribe. The Oneida do not assert a tax

immunity for most of the reservation which is owned by non-

Indians; and this Court has severely limited tribal jurisdiction

and authorized State taxation of non-Indian reservation lands

and activities. See Montana v. United States, 450 U.S. 544

(1981). In addition, as the brief amicus curiae of the

Puyallup and Southern Ute Tribes, and Pueblo of Acoma

demonstrates, numerous tribes and state and _ local

governments (including the Oneida) have reached agreements

concerning tribal payment for government services. Sherrill

should not be permitted to translate its refusal to accept such

proposals into an argument that the law should be ignored.

Neither law nor facts support Sherrill’s alarmist rhetoric.

ARGUMENT

I. THE RULE THAT TRIBAL RESERVATION

LANDS ARE EXEMPT FROM STATE AND

LOCAL TAXATION CLEARLY APPLIES HERE.

The foundational rules of Indian law include federal

exclusivity in dealing with Indian tribes, tribal sovereignty

within Indian lands, a unique federal-tribal trust relationship,

and the absence of inherent state jurisdiction with regard to

tribal Indians and lands. The immunity of Indian lands from

state and local property taxes flows naturally from the general

immunity of tribal lands from state laws. See Yakima, 502

U.S. at 258; N.Y. Indians, 72 U.S. at 768-70; Kan. Indians, 72

U.S. at 740. And, this Court has defined that immunity in

categorical terms. See California v. Cabazon Band of

Mission Indians, 480 U.S. 202, 215 n.17 (1987) (“In the

special area of state taxation of Indian tribes and tribal

10

members, we have adopted a per se rule.... [AJbsent

cession of jurisdiction or other federal statutes permitting it,

there has been no satisfactory authority for taxing Indian

reservation lands....”). The parcels at issue are immune

from Sherrill’s taxation because they are tribal lands in a

federal reservation, and because Congress has never

authorized their taxation. NCAI addresses three of Sherrill’s

attacks on this unexceptional application of established law.

A. The Lands At Issue Are In “Indian Country.”

Sherrill incorrectly argues that the general rule of tax

immunity does not apply because the parcels at issue are not

“Indian country.” See 18 U.S.C. § 1151. First, the parcels

are part of a federal reservation and, second, that reservation

is, by definition, “Indian country.”

1. Following the Revolutionary War, “the National

Government promised that the Oneidas would be secure ‘in

the possession of the lands on which they are settled,’”

Oneida II, 470 U.S. at 231, a promise that was acknowledged

and reaffirmed in the 1794 Treaty of Canandaigua, Pet App.

A141, as well as in a congressional resolution and two other

treaties.’ Article 2 of the 1794 Treaty “acknowledges” the

300,000 acres “reserved to the Oneida” in the 1788 Treaty “to

be their property” and agrees that “the said reservation shall

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

of the United States, who have the right to purchase.” /d.

> See 25 J. Cont. Cong. 687 (Oct. 15, 1783); Treaty with the Six

Nations [Ft. Stanwix], art. I], 7 Stat. 15, 15 (1784); Treaty with the Six

Nations [Ft. Hamar], art. 3, 7 Stat. 33, 34 (1789). See Oneida Il, 470 U.S.

at 231.

* Making a wholly new argument, Sherrill characterizes this language

as a federal pre-approval of the Oneida’s free alienation of tribal lands, an

astonishing interpretation that is completely inconsistent with any

contemporaneous understanding of the Treaty. The language granting the

“people of the United States” a right to purchase Oneida lands casts no

doubt on the federal government’s exclusive power to authorize such a

purchase. Sherrill’s reading would also mean that the Treaty preapproved

private purchases from the Seneca without express federal approval

1]

Article 3 of the 1794 Treaty explicitly establishes a

reservation for the Seneca. See Pet. App. Al41; FPC vy.

Tuscarora Indian Nation, 362 U.S. 99, 122-23 n.18 (1960). It

also guarantees the Seneca’s right to certain lands in virtually

the same language used to indicate that the Oneida

reservation had been federally acknowledged and guaranteed

in Article 2. See Pet. App. Al42. Article 4 of the 1794

Treaty states that “(t]he United States have thus described and

acknowledged what lands belong to the Oneidas, Onondagas,

Cayugas and Senecas,” and agrees that the United States will

“never... claim the same” and will “not disturb them... in

the free use and enjoyment thereof.” /d.

The 1794 Treaty thus confirmed that the Oneida’s

reservation lands were under federal protection and

supervision. This Court has already characterized New

York’s attempt to tax Seneca lands protected in Article 3 as

unlawful “interference with Indian possessory rights

guaranteed by the Federal Government.” Oneida /. 414 U.S.

at 672. The same conclusion necessarily follows as to the

Oneida lands similarly referenced in Article 2.

2. Despite this history, Sherrill makes two arguments that

the lands at issue ¢ ased to be Indian country in 1788.

Indian country” is defined by 18 U.S.C. § 1151 as:

(a) all land within the limits of any Indian reservation

under the jurisdiction of the United States Govern-

ment... , (b) all dependent Indian communities within

the borders of the United States... . and (c) all Indian

allotments, . . . including rights of way running through

the same. [(Emphasis supplied).]°

(contrary to the subsequent history of federal approval of

Finally, Sherrill fails to make the required iieie@etemenn

have understood the 1794 Treaty to abrogate the Nonintercourse Act.

As this Court has explained, § 1151 “statutorily define{s} Indian

country to include lands held in fee by non-Indians within reservation

boundaries.” Solem v. Bartlett, 465 U.S. 463, 468 (1984). Section § 1151

is a criminal statute, but its definition is now utilized in most other

12

(a) Sherrill first argues that the Oneida reservation is not

and never was an “Indian reservation under the jurisdiction of

the United States” because the 1788 Treaty terminated the

Oneida’s aboriginal rights in those lands. Sherrill claims that

in the 1788 Treaty, the Oneida sold the aboriginal rights of

possession in all their lands to New York, which then ceded

300,000 acres back to the Oneida in some heretofore

unknown state-law right of possession. From this, Sherrill

concludes, the Oneida’s aboriginal rights of possession were

extinguished in 1788; the 1794 Treaty could not have created

a federal reservation; and the lands reserved to the Oneida

were never “Indian country” and thus never subject to the

Nonintercourse Act. This argument reflects Sherrill’s utter

failure to understand the discovery doctrine, the principles

governing treaty interpretation, and the Nonintercourse Act.

During the colonial period, tribes were recognized as

sovereigns, governing their territories and in charge of their

foreign relations with European powers. Worcester, 31 US.

at 547. Under European law, however, a European power’s

“discovery” of aboriginal land limited tribal sovereignty in

two respects: First the “discovering” state could iawfully

prohibit a tribe within its realm from entering into treaties

with rival powers. Second, and of vital importance here, the

discovering power obtained the exclusive right to buy land

from that tribe and thereby extinguish aboriginal title. /d. at

543-44.

Under the discovery doctrine, the tribe retained control over

“internal and social relations, and [was] not brought under the

laws of the Union or the state within whose limits they

resided.” United States v. Kagama, 118 U.S. 375, 382

(1886). The tribe also maintained its existing rights of use

and occupancy, known as Indian or aboriginal title, subject

only to the sovereign’s exclusive right to extinguish those

rights by purchase. Worcester, 31 U.S. at 544; see also

contexts. See Okla. Tax Comm'n v. Sac & Fox Nation, $08 U.S. 114, 123

(1993).

13

Oneida Il, 470 U.S. at 235-36. This rule k

colonial powers and the tribes, prevented conflict about land

title, and gave the sovereign

monopoly power over the land

market. See generally Cohen Handbook at 50-62.

In the original 13 colonies, the discovery

British Crown the exclusive right to ee hao ber

to extinguish aboriginal title. Johnson, 21 U.S. at 587 (“the

power [of discovery and purchase] now possessed by the

government of the United States to grant lands, resided. while

we were colonies, in the crown, or its grantees”).° When the

United States declared independence, the rights to restrain

alienation and to extinguish title passed to the colonies.

— I, 414 U.S. at 667. The Articles of Confederation.

wever, were unclear about whether, and the extent to

which, the states or the United States had succeeded to the

Crown $ discovery rights. See R. Clinton, The Dormant

Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1098-47

(1995) (legal history of federal-state conflict during this

period); cf. Oneida Indian Nation v. New York. 860 F 2d

1145, 1152-61 (2d Cir. 1988) (New York had the power to

purchase tribal land prior to the effective date of the

preg New York and other colonies took the position

they had inherited some of the powers of the British

Crown with respect to tribes within their boundaries. It was

as purported successor to the British Crown that New York

entered into the 1788 Treaty, purchased most of the Oneida

lands, and recognized the Oneida’s “reservation”

2 ‘ ation” of 300,

acres “forever.” Pet. App. A136-37. Res

Experience under the Articles demo

erie ! nstrated to the

Constitutional Convention of 1787 that exclusive federal

control over Indian policy, including land policy, was

necessary. Separate states’ actions routinely created serious

* See also Worcester, 31 U.S. at 548 (describing Royal Proclamation of

ads 1763 (forbidding white settlement west of the crest of the

Appalachian Mountains and requiring imperial approval prior to the

issuance of patents to Indian lands lying east of that line)).

14

conflicts and threats of wars with powerful tribes. See 33 J.

Cont. Cong. 455-63 (Aug. 3, 1787). With relatively little

debate, accordingly, the Constitution gave the federal

government exclusive power over Indian affairs. See J.

Madison, Journal of the Federal Convention 654-56 (E. Scott

ed. 1898); Worcester, 31 U.S. at 559 (“[t}hese powers

comprehend all that is required for the regulation of our

intercourse with the Indians”); Blackfeet, 471 U.S. at 764

(“[t}he Constitution vests the Federal Government with

exclusive authority over relations with Indian tribes”).”

Promptly in 1790, the First Congress enacted the

Nonintercourse Act, which codified the discovery doctrine’s

restraint on alienation absent sovereign consent by providing:

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 fo 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. [Ch. 33, §3, 1 Stat. at 138 (emphasis

supplied).]°

As George Washington explained to the New York Senecas,

the Nonintercourse Act “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.” See American State Papers: Indian Affairs

No. 23, at 142 (1832).

’ See also The Federalist No. 42, at 268 (Madison) (C. Rossiter ed.,

1961) (“{t}he regulation of commerce with the Indian tribes is very

properly unfettered from two limitations in the Articles of Confederation,

which render the provision obscure and contradictory”).

* The 1790 Act was reenacted with only minor modifications in 1793,

1796, 1799, and 1802. In 1834, the general restraint on individual Indian

sales was removed, see Act of June 30, 1834, ch. 161, § 12, 4 Stat. 729,

730-31 (codified as amended in part at 25 U.S.C. § 177).

15

The Nonintercourse Act gave the federal government

exclusive authority with respect to a// Indians lands, includi

those in the original 13 colonies: a

The rudimentary propositions that Indian title is a

matter of federal law and can be extinguished only with

federal consent apply in all of the States, including the

original 13. It is true that the United States never held

fee title to the Indian lands in the original States as it did

to almost all the rest of the continental United States and

that fee title to Indian lands in these States, or the pre-

emptive right to purchase from the Indians was in the

State. But this reality did not alter the doctrine that

federal law, treaties and statutes protected Indian

occupancy and that its termination was exclusively the

province of federal law. [Oneida I, 414 U.S. at 670

(footnote and citation omitted) (emphasis supplied). ]°

In sum, the Constitution and the Nonintercourse Act

“explicitly extinguished whatever claims the states might

previously have had to exercise power over Indian land

transactions and explicitly federalized the regulation of Indian

land cessions.” R. Clinton & M. Hotopp, Judicial

Enforcement of the Federal Restraints on Alienation of Indian

Land: The Origins of the Eastern Land Claims, 31 Me. L

Rev. 17, 88 (1979)."° |

Ww .

Amici Counties incorrectly cite New Jersey v. Wilson, 11 U.S. (7

Cranch) 164 (1812), for the proposition that the Noniatereourse Act éid

not apply to Indian lands within states. Brief Amicus Curiae of Madison

& Oneida Counties at 14. No Indian was a party in Wilson, and the

decision did not involve or address the validity of a tribal conveyance,

reservation status, or any tribal possessory rights. This Court simply

SE arn Ctmnae dale cqpiast Wow lereay wougin Wy nen-tadian

purchasers d as to which the State had promised tax i i

USS. at 165-67, ar

The exclusive federal power over tribal relations and the federal

statutory restraints on alienation also created a trust or fiduciary

responsibility in the United States with respect to the tribes and tribal land.

See Cherokee Nation v. Georgia, 30 U.S. (5 Pet. ) 1, 17 (1831); Seminole

16

As noted, the 1788 Treaty was signed during the period

governed by the Articles of Confederation (though after New

York had signed the Constitution and the required nine states

had established it), New York was acting as one of the

successors to the discovering sovereign (the Crown) when it

entered into that Treaty. In that capacity, New York acquired

most of the Oneida lands, while the Oneida “reserved”

300,000 acres “forever.” Thus, New York exercised its

purported right to purchase most of the Oneida’s land, while

simultaneously recognizing the Oneida’s aboriginal rights in

the reserved tracts of laid. The Treaty constituted a routine

exercise of a “discovering” sovereign’s right to purchase

certain lands while “reserving” other lands to the Oneida in

fulfillment of the sovereign's trust obligation with respect to

the Tribe’s aboriginal rights of possession. See also

Worcester, 31 U.S. at 552.

The text of the 1788 Treaty leaves no doubt as to its proper

construction. It dispositively states that the Oneida

“reserved” lands “forever” — language that, in this setting, has

an estab'ished meaning. The word reservation originally

meant “land reserved from an Indian cession to the federal

government regardless of the form of tenure.” See Cohen

Handbook, at 34. When the term is used as an aid to judicial

construction, it denotes rights reserved from a cession made

by the Indians to the government, rather than rights granted to

the Indians by the government. See Winans, 198 U.S. at 381

(“[T]he treaty was not a grant of rights to the Indians, but a

grant of right from them, — a reservation of those not granted.

And the form of the instrument and its language was adapted

to that purpose”) (emphasis supplied). As Professor Cohen

explains,

Nation v. United States, 316 U.S. 286, 296-97 (1942). And, it is the trust

responsibility which, in turn, gave rise to the canons of construction

requiring that an agreement between a discovering sovereign (or its

successor) and a tribe must be construed as the tribe would have

understood it. See Mille Lacs, 526 U.S. at 196.

17

“Indian reservations” acquired their name from the

fact that when Indians ceded land, they commonly made

“reservations” of land to be retained in Indian

ownership. This practice goes back at least to 1640,

when Uncas, the Mohican chief, deeded a large area to

the Colony of Connecticut, out of which he carved a

reservation for himself and his tribe.” [Original Indian

Title, supra, at 35 n.17 (citing | Trumbull, History of

Connecticut 117 (1818)).]''

Sherrill’s reading of the 1788 Treaty would give the State

greater rights than the United States would have had upon

entering into the same Treaty. This extraordinary, counter-

historical interpretation should be rejected.

Sherrill’s reading of the Treaty is doomed not only because

it contravenes the ordinary usage of “reservation,” but also

because it is utterly inconsistent with any understanding the

Oneida would have had. Worcester, 31 U.S. at 552, is

directly on point. There, the Court interpreted a treaty

“allott{ing}” Cherokee territory. Georgia argued that

“allotted” meant land given to the Cherokee by the United

States while “marked out” meant land demarcated as between

sovereigns. Rejecting this technical argument, the Court said

it was not “reasonable to suppose that the Indians, who could

not write, and most probably could not read, who certainly

were not critical judges of our language, should distinguish

the word ‘allotted’ from the words ‘marked out.’” /d. See id.

at 582 (M’Lean, J., concurring) (“[h]ow the words of the

'' See also United States v. Alcea Band of Tilanooks, 329 U.S. 40, 52

(1946) (whether a tract of land “was properly called a reservation .. . or

unceded Indian country .. . is a matter of little moment . . . the Indians’

right of occupancy has always been held to be sacred; something not to be

taken from him except by his consent”) (omissions in original); Minnesota

v. Hitchcock, 185 U.S. 373, 390 (1902) (“[I]}n order to create a reservation,

it is not necessary that there should be a formal cession or a formal act

setting apart a particular tract. 't is enough that from what has been done

there results a certain defined tract appropriated to certain purposes.”).

18

treaty were understood by this unlettered people, rather than

their critical meaning, should form the rule of construction”).

Even if the 1788 Treaty could be read to have created some

new state-law right of possession, the Constitution and the

Nonintercourse—Aet placed disposition of that right under

exclusive federal control. Indeed, the Act flatly prohibited

any “sale of lands” by Indians without federal authorization,

including sales to states “having the right of pre-emption to

such lands.” Ch. 33, §4, 1 Stat. at 138. “The federal

restraints on alienation and exclusive control over the

extinguishment of Indian title constitute federal regulatory

action under the Indian Commerce Clause; they do not result

from either federal claims to an interest in land owned by

tribes or the tenure by which the tribal land is held.” Cohen

Handbook at 514-15 (emphasis supplied). New York’s

continuing purchases of Oneida lands after adoption of the

Constitution violated the Nonintercourse Act, and failed to

extinguish the treaty-recognized aboriginal rights in the lands.

(b) Sherrill’s second argument is that even assuming the

Oneida parcels are in a federal reservation, they are not

“Indian country.” Sherrill maintains that Ver.ie crafted a

new test to assess whether a reservation is Indian country,

requiring that the federal government not only set aside, but

also engage in active, continuous administrative

superintendence of, reservation lands. This argument is

plainly wrong.

“Indian country” has always included reservations set aside

by federal treaties. See Venetie, 522 U.S. at 528 n.3 (“[wle

ha[ve] also held, not surprisingly, that Indian reservations

[a]re Indian country”). Venetie does not remotely suggest that

a court, when considering such reservation lands, must

separately assess whether the government has subjected those

same lands to continuous administrative supervision. Nor do

this Court’s earlier precedents. The leading case is Donnelly

v. United States, 228 U.S. 243, 269 (1913), where this

Court — without any reference to the need for a continuous

19

superintendence inquiry — firmly declared that “nothing can

more appropriately be deemed ‘Indian country’... than a

tract of land that... is lawfully set apart as an Indian

reservation,” whether originally occupied by the tribe or set

aside from the public domain. The federal government

ultimately possesses the authority to enact laws governing

Indian reservations; and this Court has, accordingly, deemed

reservation lands to fall under federal superintendence by

definition. See Venetie, 522 U.S. at 529 (“{in United States v.

McGowan, 302 U.S. 535, 539 (1938)], {w]e reasoned that,

like Indian reservations generally, the [non-reservation

Indian] colony had been ‘“‘validly set apart for the use of the

Indians ... under the superintendence of the Government’”””)

(omission in original) (emphasis supplied).

In contrast, Venetie considered lands governed by the

Alaska Native Cla:ms Settlement Act (“ANCSA”). As the

Court detailed, ANCSA expressly revoked all reservations in

Alaska (excepi one) and extinguished all aboriginal claims to

land in the State, and conveyed land in fee simple to state-

chartered Alaska Native corporations. Because ANCSA

expressly terminated the Alaska lands’ reservation status

(§ 1151(a)) and because the lands had not been taken into

federal trust (§ 1151(c)), the Court considered only whether

the lands fell within the third distinct category of Indian

country lands — whether the lands were “‘dependent Indian

communities.”” Jd. at 527. In answering “no,” the Court

considered it critical that the lands were freely alienable and

could be used for non-Indian purposes, and found that

ANCSA expressly terminated federal superintendence of the

land at issue. Finally, the Court concluded that an express

goal of ANCSA was to avoid “‘a lengthy wardship or

trusteeship,”” severely “undercut[ting]” any finding of federal

superintendence. /d. at 533-34. Nothing in Venetie, which

addresses the “dependent Indian community” definition,

Suggests that a federal reservation is not “Indian country”

under federa! law.

20

The 1788 Treaty reserved Oneida lands; that reservation

shortly thereafter became subject to federal authority. It is

“Indian country” as matter of federal law.

B. The Reacquired Lands Are Not Alienable And,

In Any Event, Congress Has Not Authorized

State And Local Taxation.

Sherrill and its amici try desperately to force this case into

the procrustean bed of Yakima and Cass County, which they

read to say that alienable land in Indian country is taxable.

They argue that even though the Oneida lands were

unlawfully alienated, the Oneida’s reacquiz‘tion does not

bring the restrictions on alienability back into effect, and the

Oneida must petition the United States for trust status under

25 U.S.C. § 465, to reinstate their lands’ tax-immune status.

Yakima and Cass County, however, arose in the distinct

historic context of the allotment era statutes — federal laws

authorizing the transfer of Indian lands and expressly

allowing the imposition of state and local taxes. Here, in

marked contrast, the initial transfer of land from the Oneida

violated federal law. And, Congress has never authorized

state and local taxation of tribal lands within this reservation.

Under the Constitution, absent some exercise of federal

authority, tribes retain sovereignty over their members and

lands and aboriginal title. See Cherokee Nation, 30 U.S. at 16

(a tribe is a “distinct political society, separated from others,

capable of managing its own affairs and governing itself”).

Thus, once the Constitution was enacted, states ceased to

have jurisdiction vis-a-vis tribes and tribal lands, which were

immune from state laws unless otherwise provided by

Congress. See Cohen Handbook at 388; Worcester, 31 U.S.

at 556-57." “The policy of leaving Indians free from state

'2 Indeed, in addressing apportionment of population among the States

for purposes of representation in the House of Representatives and federal

taxation, the Constitution expressly excludes “Indians not taxed,” U.S.

Const. art. I, § 2, ch. 3, “an accurate description of the status of [tribal]

21

jurisdiction is deeply rooted in the Nation’s history.” Rice v.

Olsen, 324 U.S. 786, 789 (1945).

The general rule of federal preemption of state property

taxes on tribal land operated without difficulty during the

initial federal Indian eras of isolation and removal. In the late

19th century, however, Congress “retreated from the

reservation concept and began to dismantle the territories that

it had previously set aside as permanent and exclusive homes

for Indian tribes.” Yankton Sioux, 522 U.S. at 335. Through

the General Allotment Act of 1887 (“GAA”) and other

allotment statutes, Congress allotted reservation lands to

individual Indians and opened “surplus” land to non-Indian

homesteading. /d. at 335-36 (ch. 119, 24 Stat. 388). Allotted

land under the GAA could not be taxed until the restrictions

on its sale were lifted; but a 1906 amendment to the GAA

permitted the Secretary of the Interior to eliminate such

restrictions and to issue a fee patent at which time “all

restrictions as to... taxation of said land shall be removed.”

Ch. 2348, 34 Stat. 182, 183 (codified at 25 U.S.C. § 349).

Similar provisions were enacted with respect to many other

allotments. See Cohen Handbook at 410-11 nn.54, 55 (citing

statutes). Massive quantities of allotted land were lost.

Relevant here, the GAA and other allotment acts were

deemed expressly to authorize state and local taxation of

allotted land after restrictions on its sale were lifted. See

GAA § 6, 25 U.S.C. § 349 (state laws apply to allottees who

receive a fee patent to land); Goudy v. Meath, 203 U.S. 146

(1906) (relying on § 6 to uphold state taxation of allotted

Indian land in a reservation when federal restrictions expired).

Congress “formally repudiated” the allotment policy by

passing the Indian Reorganization Act of 1934, see Yankton

Sioux, 522 U.S. at 339, which provided that no further

allotment of tribal land should take place and sought to

Indians in 1789,” a time “when Indians were not subject to any ordinary

laws save those of their tribes,” Cohen Handbook at 388, 389.

22

encourage tribal self-determination. Ch. 576, § 4, 48 Stat.

984, 985 (codified as amended at 25 U.S.C. § 464). That Act,

however, simply stanched the tribes’ hemorrhaging of lands.

When Congress reversed course, tribes had already lost

ownership of vast lands which were no longer tax exempt.

Yakima and Cass County arose in this context.

In Yakima, the County sought to tax lands owned by

individual tribal members pursuant to the GAA. The Court

found in the GAA (as amended by the Burke Act) a clear

congressional intent to allow taxation of allotted lands after

they became fully alienable. Put differently, once the lands

became freely alienable, the landowners, though tribal

members, no longer held the land in federal trust, but rather as

any non-Indian landholders would.

The circumstances presented here are not remotely

analogous. In Yakima, the Court addressed the consequences

of transactions authorized — indeed, required — by federal

statute. Here, the Court addresses the consequences of

transactions forbidden by federal law. Under Yakima, the

Court found that Congress expressly made the allotted lands

taxable and that the tribe’s reacquisition of such land, even in

Indian country, did not automatically repeal the statute and

reconfer a tax exemption. Congress never authorized taxation

of tribal lands in the Oneida reservation. Indian title to the

parcels at issue was never quieted; they are tribal lands which

are not freely alienable under the plain text of the

Nonintercourse Act. See 25 U.S.C. § 177. See also 25 C.F.R.

§ 152.22(b) (trust lands, restricted lands, “and any other land

owned by an Indian tribe may only be conveyed where

specific statutory authority exists”).

Cass County is likewise inapposite. There, this Court

construed the Nelson Act of 1889, which implemented the

allotment policy for the Chippewa Tribes of Minnesota. It

required the Chipppewa to cede title to land in the state; the

United States then either allotted lands to tribal members as

under the GAA, sold the lands as pine lands to the highest

23

bidder, or sold the land as “surplus” to non-Indians under the

Homestead Act. In the 1980s, half a century after

congressional repudiation of allotment, the Leech Lake Band

repurchased fee land within its reservation. Cass County

assessed property taxes against the reacquired parcels.

The Court found that the County could tax the Tribe’s

reacquired lands. The Nelson Act reflected an “unmistakably

clear” congressional intent to authorize taxation because it

terminated the Indian right of possession and made the lands

freely alienable. 524 U.S. at 113-14. Thus, like Yakima,

Cass County fundamentally turned on a_ congressional

authorization of the initial alienation and a clearly-expressed

congressional intent to permit taxation of lands after they had

become freely alienable. Neither circumstance obtains here.

And, Cass County reaffirms the longstanding principle of

tribal lands’ tax immunity absent clear congressional action.

Sherrill misuses cases arising out of the federal allotment

statutes to justify taxation of lands lost to the Tribe through

unlawful transactions. Tribal reacquisition remedies illegal

transactions, and reactivates the lands’ tax exemption and the

Nonintercourse Act’s restrictions on alienability.

C. The Oneida Reservation Was Never Diminished

Or Disestablished.

A necessary consequence of the exclusive federal authority

__—over the alienation of tribal lands and the resultant federal

trust obligation is that “only Congress” can disestablish or

. diminish a reservation. Solem, 465 U.S. at 470. Neither a

state, cf. Oneida II, 470 U.S. at 234, nor private individuals,

see United States v. Celestine, 215 U.S. 278, 286-87 (1909),

can alter the status of reservation lands. “Once a block of

land is set aside for an Indian reservation and no matter what

happens to the title of individual plots within the area, the

entire block retains its reservation status until Congress

explicitly indicates otherwise.” Solem, 465 U.S. at 470

(emphasis supplied).

24

This Court has never permitted de facto diminishment or

disestablishment of a reservation. To the contrary, in light of

the federal trust obligation, diminishment or disestablishment

requires a “‘clear and plain’” congressional act. ‘Yankton

Sioux, 522 U.S. at 343 (quoting United States v. Dion, 476

U.S. 734, 738-39 (1986)).> The standard is particularly high

for a reservation guaranteed and allegedly abrogated by

federal treaty, because Congress’s intention to abrogate a

treaty must be “clearly express[ed],” Mille Lacs, 526 U.S. at

202, and because a treaty must be interpreted not simply with

respect to Congress’s intent, but as “the Indians themselves

would have understood [it],” id. at 196."4

In support of its argument that the Oneida reservation was

disestablished, Sherrill cites only the 1838 Treaty of Buffalo

Creek — not an act of Congress but a bilateral treaty — in

which, inter alia, the Oneida exchanged lands in Wisconsin

for lands in Kansas. This Treaty does not in any way, let

alone clearly, reflect an agreement to disestablish the

Oneida’s New York reservation. The Oneida’s assent was

obtained only after a federal agent explicitly explained that

the Treaty allowed them to “remain where they are forever.”

JA 146. And, the Oneida did not, in fact, leave the land.

To determine whether Congress has clearly diminished or

disestablished a reservation through unilateral legislation, this

Court considers three factors — the text of the statute, the

'3 See, e.g., Yankton Sioux, 522 U.S. at 357-58 (1894 surplus land act);

Hagen v. Utah, 510 U.S. 399, 407 (1994) (1905 Proclamation effectuating

1902 Act); Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 598 (1977) (1904

surplus land act); DeCoteau v. Dist. County Court, 420 U.S. 425, 445

(1975) (1891 surplus land act); United States v. Santa Fe Pac. R.R., 314

U.S. 339, 357 (1941) (1883 act creating reservation at tribe’s request

diminished old reservation).

'* Although no “particular form of words” is required, the statutory or

treaty language must be clear, Hagen, 510 U.S. at 411 (citing Solem, 465

U.S. at 475); and ambiguities in the language are resolved in favor of

continued reservation status. See South Dakota v. Bourland, 508 U.S.

679, 687 (1993).

25

surrounding circumstances or historical context, and the

interpretive knowledge that can be gained from transactions

following the federal act. See Hagen, 510 U.S. at 411; Solem,

465 U.S. at 470-71. Even when transported wholesale to the

context of a bilateral treaty, none of these factors supports

diminishment or disestablishment here.

Sherrill sees the Buffalo Creek Treaty as a mandatory

removal treaty vis-a-vis the Oneida, but that interpretation

finds no support in the text — the “most probative evidence of

diminishment,” Hagen, 510 U.S. at 411 — and is directly

refuted by a federal agent’s contemporaneous explanation of

the Treaty’s terms. The Treaty contains no language that can

be construed as a cession of Oneida lands in New York, see

Pet. App. A147-48. It ceded the Wisconsin lands of the New

York Indians and provided for the removal of the New York

Indians “[iJn_ consideration of that) cession and

relinquishment.” Id. at A149. In Article 13 addressing the

Oneida, the Treaty makes removal conditional, occurring only

upon the “mak[ing] of satisfactory arrangements with the

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

lands at Oneida.” Jd at A155. Moreover, the Treaty

expressly contemplated that the Oneida and some other New

York tribes might not remove, providing that:

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 . . . appoint, shall forfeit all interest in

a SO set apart, to the United States. [/d at

This is a far cry from clear evidence of an agreement t

disestablish the reservation. geri

Dispositively, moreover, before the Oneida assented to the

Treaty, federal Commissioner Ransom Gillet explained its

meaning, as reflected in a document provided and explained

to the Oneida chiefs ard then submitted to the Senate with the

26

Treaty: “the treaty does not and is not intended to compel the

Oneidas to remove from their reservation in the State of New

York . . . unless they shall hereafter voluntarily sell their lands

where they reside & agree to do so.... [t]hey will not be

compelled to sell or remove.” JA 146. This is plainly the

meaning of the text that would have been understood by the

Oneida. See Washington v. Wash. State Commercial

Passenger Fishing Vessel Ass'n, 443 U.S. 658, 676 (1979)

(treaties are construed “‘not according to the technical

meaning of its words to learned lawyers, but in the sense in

which they would naturally be understood by the Indians’”

(quoting Jones v. Meehan, 175 U.S. 1, 11 (1899))).

The Court has found clarity and disestablishment in

congressional acts explicitly forfeiting tribal authority over

lands.'* But when Congress merely expresses an intent to

open a reservation to settlement in the future, that is

insufficient to disestablish a reservation. For example, Solem

distinguished a direction to “‘sell and dispose’ of” unallotted

reservation land from the immediate “language of cession”

that clearly diminishes a reservation. 465 U.S. at 473; see

also Mattz v. Arnett, 412 U.S. 481, 495-96 (1973) (a

declaration that lands are “‘subject to settlement, entry, and

purchase” is insufficient to disestablish). In Santa Fe, 314

U.S. at 354-55, Congress created a new reservation for the

Walapai to induce removal, but the Walapai “did not accept

the offer which Congress had tendered.” /d at 354.

'S See Rosebud Sioux, 430 U.S. at 597 (the tribe does “‘hereby cede,

surrender, grant, and convey to the United States all their claim, right,

title, and interest in and to’” the unallotted lands of their reservations)

(quoting 33 Stat. 256); DeCoteau, 420 U.S. at 445 (the tribe would “‘cede,

sell, relinquish, and convey” its unallotted lands to the United States)

(quoting 26 Stet. 1036); Or. Dep't of Fish & Wildlife v. Klamath Indian

Tribe, 473 U.S. 753, 768 (1985) (recognizing similar cession language as

being a “broad and unequivocal conveyance of the Tribe's title to the

land”); Hagen, 510 U.S. at 407-08 (tribal lands will “be restored to the

public domain .... [and] opened to entry, settlement, and disposition”)

(internal quotation marks omitted) (quoting 34 Stat. 3119-20).

27

Congress’s intent that the Walapai remove did of

disestablish the Tribe’s reserved lands; tribal rights in those

lands terminated only many years later after the Tribe

unequivocally accepted the new reservation and agreed to

remove. /d. at 358. Similarly, Congress’s expressed desire

that the Oneida remove in the future did not affirmatively

disestablish their reservation, as the solemn assurances made

by the government’s negotiator amply confirm.'°

The Treaty’s historical context does not provide the

“unequivocal evidence” missing from the text. See Yankton

Sioux, 522 U.S. at 351. The Treaty effected the New York

tribes’ exchange of their lands in Wisconsin for lands in

Indian Territory (now Kansas), but the United States had

varying success in convincing the affected tribes to remove.

The Seneca and Tuscarora nations agreed to remove within

five years (agreements that were later reversed). The Cayuga

and Onondaga were promised money if they removed, but did

not agree to do so. Pet App. A1l53-54. The St. Regis

Mohawks secured a supplement to the treaty providing that

“the Government shall not compel them to remove.” 7 Stat.

561, 561 (1838). As noted, the Oneida made only a

conditional agreement and ultimately did not remove.

In reality, Sherrill and its amici rely heavily, indeed

virtually exclusively, on the third, and “least compelling”

factor (Yankton Sioux, 522 U.S. at 356) used to determine

diminishment or disestablishment — land transactions after the

Treaty. But they ignore that this evidence is only an aid to

interpretation of the federal treaty or statute — and is “an

unorthodox and potentially unreliable method of...

'° Sherrill incorrectly claims that “(t}his Court has recently recognized

that an agreement to remove ‘as soon as’ an expected imminent event

occurs is a present agreement to remove.” Pet.’s Br. 35. A footnote in

Mille Lacs listed removal treaties executed in 1837, including a treaty with

the Saganaw Chippewa in which the tribe ceded over 100,000 acres to the

United States. See 526 U.S. at 190 n.4. This cession, not the phrase “as

soon as,” made the Saganaw Chippewa treaty a “removal treaty.”

28

interpretation” at that. Solem, 465 U.S. at 472 n.13. This

Court has never found de facto disestablishment based solely

upon demographic patterns. Here, where the Treaty and the

negotiating history belie any claim of disestablishment, these

patterns have no place in the analysis.'’

Moreover, Sherrill is not relying on demographic changes

resulting from the implementation of a Treaty. Instead,

Sherrill relies on sales that preceded and followed the Treaty

and violated the Nonintercourse Act. Sherrill’s real argument

is that the 1838 Treaty somehow ratified illegal sales that took

place before its negotiation (including sales of the parcels

here) and authorized future illegal sales. This Court has

already rejected this kind of post hoc ratification argument

absent express language of ratification. See Oneida II, 470

U.S. 246-48 & n.19. The Treaty text cannot bear this weight.

In any event, this Court has discussed demographics only in

the context of allotment acts approving land sales. /Ilegal

land sales before and after a treaty are neither relevant nor

probative. Put differently, the argument that illegal sales of

Oneida lands can diminish or disestablish a federal

reservation turns federal supremacy into a charade.'* The

Treaty of Buffalo Creek does not reflect any “clear and plain”

intent to diminish or disestablish the Oneida reservation.

'” See, eg., Yankton Sioux, 522 U.S. at 356-57 (subsequent

demographics “reinforce{d] our holding” that surplus land act diminished

reservation); Hagen, 510 U.S. at 420 (subsequent demographics did “not

controvert{]” finding that surplus land act diminished reservation).

'§ Amici’ s arguments that the United States acquiesced in state and local

jurisdiction over Oneida lands after they were illegally alienated and that

the Oneida abandoned their lands are not relevant to the disestablishment

question. Neither passive acquiescence nor abandonment after an illegal

sale can stand in for a treaty clearly expressing the parties’ agreement to

disestablish. And, even if third-party possession of lost lands might limit

a tribe’s right to possession, see United States v. Creek Nation, 295 U.S.

103, 110-11 (1935), this Court has never suggested that such

circumstances limit tribal sovereignty if the tribe in fact obtains possession

by purchasing the lands from the non-Indian third party.

29

ll. A FINDING THAT THE TRIBAL LANDS AT

ISSUE ARE IN INDIAN COUNTRY WILL NOT

HAVE THE APOCALYPTIC CONSEQUENCES

SHERRILL AND ITS AMICI PREDICT.

Sherrill and its amici claim, in vastly overblown terms, that

an adverse decision in this case will yield dire consequences.

Their arguments are entirely misplaced.

First, Sherrill and its amici address their arguments to the

wrong audience. This Court has repeatedly held that “Indian

treaties cannot be rewritten or expanded beyond their clear

terms to remedy a claimed injustice.” Choctaw Nation of

Indians v. United States, 318 U.S. 423, 432 (1943); see also

N.W. Bands of Shoshone Indians v. United States, 324 U.S.

335, 353 (1945). This rule is often invoked in situations

where the equities would otherwise weigh in favor of revising

a treaty to benefit a tribe. Fidelity to treaty terms is at least as

important where those terms support the tribal position, as do

the terms of the 1788, 1794, and 1838 Treaties. Indeed, this

Court has already accepted “the potential consequences” of its

decision in Oneida Il. See 470 U.S. at 253.

As noted above, other States that violated the

Nonintercourse Act fashioned congressionally-approved

settlements with affected tribes. The policy issues arising

from the taxation of land are appropriately addressed through

such settlements. Sherrill’s true complaint lies with New

York for its failure to negotiate such an agreement.

Second, Sherrill and its amici seek to obscure that the

questions presented concern whether Sherrill may circumvent

the traditional tax-immune status of tribally-owned lands in a

reservation. This case has no relevance to whether the Tribe

may tax or otherwise regulate reservation lands that it does

not own, i.e., almost all of the Oneida reservation. This Court

has sharply limited the ability of tribes to exercise such

jurisdiction. See Atkinson Trading Co. v. Shirley, 532 U.S.

645 (2001); Montana v. United States, 450 U.S. 544 (1981).

30

Third, the impact that a reaffirmation of longstanding

principles of tribal tax immunity would have on New York

and its subdivisions is vastly exaggerated. Numerous states

and counties have within their borders non-taxable tribal land

holdings that dwarf the amount of land realistically at issue

here. But while New York and its subdivisions have

submitted numerous briefs amicus curiae to the Court, no

other governmental entity has supported _ petitioner,

suggesting they do not suffer fiscal chaos as a result of the

presence of tribal land and, indeed, often thrive through

contributions made by Indian tribes to their economies. See

Brief Amicus Curiae of Puyallup and Southern Ute Tribes,

and Pueblo of Acoma.

Sherrill’s assertions on this subject ring particularly hollow.

The Oneida Nation seeks to act fairly not only with respect to

the third-party landowners from whom it purchased property,

but also with regard to the counties and municipalities

affected by those purchases. Accordingly, the Tribe operates

a Silver Covenant Chain Grant program, providing direct

grant monies to local governments and school districts based

on the amount of tribal landholdings within their boundaries.

See JA 216-19. In the case of county and municipal

government units, those grant monies are equivalent to the

taxes the Tribe would have paid on its landholdings absent its -

tax immunity. /d at 216-17 In the case of the school

districts, the Tribe pays twice to three times as much in grants

as it would in taxes. /d. at 219. Sherrill, however, has

steadfastly refused to accept any grant monies from the Tribe.

See CA2 J.A. A-1587. Sherrill has elected to fight the Tribe

rather than to cooperate with it, and should not be heard now

to complain about the consequences of its own choice.

CONCLUSION

The judgment of the court of appeals should be affirmed.

RIYAZ A. KANJI

KANJI & KATZEN, PLLC

201 South Main Street

Suite 1000

Ann Arbor, MI 48104-2177

(734) 769-5400

JOHN DOSSETT

NATIONAL CONGRESS OF

AMERICAN INDIANS

851 SW Sixth Avenue

Suite 1650

Portland, OR 97204

(503) 248-0783

Respectfully submitted,

CARTER G. PHILIPS*

VIRGINIA A. SEITZ

MATTHEW J. WARREN

SIDLEY AUSTIN BROWN &

WOOD LLP

1501 K Street, N.W.

Washington, D.C. 20005

(202) 736-8000

MARK E. HADDAD

SIDLEY AUSTIN BROWN &

WOOD LLP

555 W. Fifth Street

40th Floor

Los Angeles, CA 90013

(213) 896-6000

Counsel for Respondents

September 30, 2004

* Counsel of Record