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

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(2) AUG 1” 2004

No. 03-855

IN THE

Supreme Court of the United States

CITY OF SHERRILL, NEW YORK,

Petitioner,

ONEIDA INDIAN NATION OF NEW YORK, RAY

HALBRITTER, KELLER GEORGE, CHUCK FOUGNIER,

MARILYN JOHN, CLINT HILL, DALE ROOD, DICK LYNCH,

KEN PHILLIPS, BEULAH GREEN, BRIAN PATTERSON,

and IVA ROGERS,

Respondents.

On Writ oF CERTIORARI TO THE

Unitep STATES CourRT OF APPEALS FOR THE SECOND CIRCUIT

-- —

ee —

BRIEF OF AMICUS CURIAE

STATE OF NEW YORK

IN SUPPORT OF PETITIONER

Dwicut A. HEALY E.iot SPIrzer

Wuire & Case LLP Attorney General of the

1155 Avenue of the Americas State of New York

New York, NY 10036 CarrTun J. HALLIGAN*

Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General

Peter H. ScuiFr

Senior Counsel

ANDREW D. BING

Assistant Solicitor General

120 Broadway

New York, NY 10271

* Counsel of Record (212) 416-8016

Attorneys for Amicus Curiae

2 ES a “ae

TABLE OF CONTENTS

BRR GE GST E ITED oc ccccncecccncsccceces

TABLE OF CITED AUTHORITIES ............

INTEREST OF THE AMICUS CURIAE .........

HISTORICAL BACKGROUND OF THE BUFFALO

SET A600 60s Se dedvosedeyscees

A Principal Goal of Federal Removal Policy

Was to Terminate Indian Sovereignty in the

I cn uvedeneeeneucessesenes

B. The Oneidas’ Removal from New York

Commenced More Than 20 Years Before the

Proclamation of the Buffalo Creek Treaty ..

C. The Oneidas Agreed to Remove from New

York in the Treaty of Buffalo Creek .......

D. After the Proclamation of the Treaty, Most

Remaining Oneidas Left New York and the

State and Local Governments Assumed

Jurisdiction Over Their Former Lands .....

SUMMARY OF ARGUMENT .................

EE che uae rs bubehedeseennsénses

I. The Terms of the Buffalo Creek Treaty, its Role

in Effectuating Federal Removal Policy, and

the Area’s Subsequent Jurisdictional History

Demonstrate That the Treaty Ended Oneida

Sovereignty over the Former Reservation ..

Contents

Il. The Oneidas’ Agreement to Remove Was

Binding and Relinquished Their Sovereignty

over Their Former New York Lands .......

Ill. The Additional Reasons Offered by the Second

Circuit For Its Interpretation of the Treaty Are

Umpersuasive .......cccccccccsvcescess

CONCLUSION ..nccccccccsccccccsssssesuuen

Page

TABLE OF CITEDAUTHORITIES

Page

Cases:

Cayuga Indian Nation v. Cuomo,

730 F. Supp. 485 (N.D.N.Y. 1990),

appeal pending (2d Cir.) ...... 2... 6. ec cee 13

Cayuga Indian Nation of New York

v. Village of Union Springs,

317 F. Supp. 2d 128 (N.D.N.Y. 2004) ......... 2

Choctaw Nation v. United States,

rr 15

County of Oneida v. Oneida Indian Nation,

470 U.S. 226 (1985), aff'g in part and rev'g in part,

719 F.2d 525 (2d Cir. 1983), aff'g and remanding,

434 F. Supp. 527 (N.D.N.Y. 1977) (“Oneida IT”) . .

EE EEE IEEE SEE TTT TTT TTT 1, 13, 24, 25

DeCoteau v. Dist. Co. Court

for the Tenth Judicial Dist.,

eo Cc ccc ccccecs 16, 28

Fellows v. Blacksmith,

ee cede cc ccecncccccce 27

Hagen v. Utah,

Ss oc ceccescccesccccse 2, 15, 16

Menominee Indian Tribe v. Thompson,

161 F.3d 449 (7th Cir. 1998), cert. denied,

EEE EEE ETT TTS 17, 18

C ited Authorities

Page

Minnesota v. Mille Lacs Band of Chippewa Indians,

SEBS. TIS GRSSSD sccccccesecccccess 14-15, 22, 25

New York ex rel. Cutler v. Dibble,

GEUB. SEDC) ccvccccccess baveseceeses 27

New York Indians v. United States, .

170 U.S. 1 (1898), rev'g, 30 —t. Cl. 413 (1895),

after remand, 40 Ct. Cl. 448 (. 905) .......... passim

Oneida Indian Nation of New York

v. City of Sherrill,

337 F.3d 139 (2d Cir. 2003) ..........2eeeees passim

Oneida Indian Nation v. County of Oneida,

GOO TE Gee Gee cvccccccnsncesceunceuse 28

Oneida Nation of New York v. United States,

43 Ind. Cl. Comm. 373 (1978) ............-.-. 13

Oregon Dept of Fish and Wildlife

v. Klamath Indian Tribe,

GIB GB. FEO CSSD cccccccccccscsvcssesess 15

Rosebud Sioux Tribe v. Kneip,

So eee 15, 16, 20, 21, 28

Seneca-Cayuga Tribe of Oklahoma

v. Town of Aurelius, 03-CV-690 (N.D.N.Y.) .... 2-3

Sokaogon Chippewa Community v. Exxon Corp.,

2 F.3d 219 (7th Cir. 1993), cert. denied,

ot ef rrr 23

Cited Authorities

Page

Solem v. Bartlett,

ERE 18, 20

South Dakota v. Yankton Sioux Tribe,

Se Se PED cccccccceccces 15, 16, 17, 27, 28

The New York Indians,

SE CED cacdnschsdusenceeeeundas 27

United States v. Boylan,

265 F. 165 (2d Cir. 1920), error dismissed,

Sr a EE odcckcedeccescedsues 10, 12, 27

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

ee 14, 19, 23,24

Federal Statutes and Treaties:

Act of May 28, 1830

4 Stat. 411 (Indian Removal Act of 1830) ...... 4, 26

Act of January 28, 1893

DP a dadueudauwduededeudcauueueuee 10

a en ren 1,12

25 U.S.C. (Indian Trade and Intercourse Act)

Eee 2660660606 nenbESbecheeneunceesenbeet 13

Treaty of November 11, 1794

(Treaty of Canandaigua),

VEE ékeecdneueneedsedensecbeoncusecs 17

Cited Authorities

Page

Treaty of February 8, 1831

8 PKI TTT TT TT TTT TTT Te 6

Treaty of October 27, 1832

A SPT eee 6, 19

Treaty of January 14, 1837

PUD Acccvéddunsseusecocscensaneutes 22

Treaty of January 15, 1838

(Buffalo Creek Treaty),

FE ED acusaducesevocessseeveseciacens passim

Miscellaneous:

Brief for United States as Amicus Curiae

DED ccneesebdudenseanseadenesedes 24

Brief of Amicus Curiae, County of Oneida

v. Oneida Indian Nation,

470 U.S. 226 (1985) (No. 83-1065) ........... 19

Brief of Respondents Oneida Indian Nation

of New York, et al., in Opposition to the

Petition for Certiorari

EGE ccvenccccehecnncecesesduseesas 25, 27

Cohen, Felix S., Handbook of Federal Indian Law

SPEED ouvcocenucccecesesacesosecesss 5,6, 7,8

Cohen, Felix S., Handbook of Federal Indian Law

GRRE GD oc ccccsccecccccescececoseeesoeses +

vil

Cited Authorities

Page

Confederation of American Indians,

Indian Reservations -

A State and Federal Handbook (1986) ........ 12

http://quickfacts.census.gov/qfd/states/36/36053.h

(last visited July 13, 2004) .................. 12

http://quickfacts.census.gov/qfd/states/36/36065.h

(last visited July 13, 2004) .................. 12

Letter of Secretary of War John C. Calhoun to

Jasper Parrish, Sub-Agent of the Six Nations,

April 15, 1822, VII W. Hemphill, ed., The Papers

of John C. Calhoun, 1822-1823 (1973) ........ 6

Memorial of the Delegates from the Stockbridge,

Munsee, Brothertown, Oneida and St. Regis, to

the President of the United States, January 20, 1831,

printed in Senate Confidential Report “A Treaty

with the Menomonee Tribe of Indians,” February 28,

1832, National Archives, M668 (Ratified Indian

Treaties 1722-1869) (“1831 Senate Report”) ... 5-6, 18

Report of the Special Committee to Investigate the

Indian Problem of the State of New York (1889)

Pee CET cecececeaceocenses 6-7, 10

II James D. Richardson, ed.,

A Compilation of the Messages

and Papers of the Presidents, 1789-1897 (1899)

(“Messages of the Presidents’’)

Message of January 27, 1825 ................ 3

First Annual Message (1829) ................ 4, 26

vill

Cited Authorities

Page

24 Come, Rec. (1893) ...cccccccccccccscccccves 11, 20

6 Reg, Ded: (1850)... ccccccccsccccsccceces 4, 7, 26

U.S. Dept. of Commerce, Federal and State Indian

Reservations and Indian Trust Areas (1974) .... 12

INTEREST OF THE AMICUS CURIAE

This case presents a “serious question” left open by this

Court’s 1985 decision in County of Oneida v. Oneida Indian

Nation, 470 U.S. 226 (1985), aff'g in part and rev'g in part,

719 F.2d 525 (2d Cir. 1983), aff'g and remanding, 434

F. Supp. 527 (N.D.N.Y. 1977) (“Oneida IT’): whether the

Oneida Indian reservation in central New York State, which

was created by a state treaty in 1788 and acknowledged by

the United States in 1794, was later terminated or

substantially diminished when the Oneidas remaining in the

area in 1838 agreed in the Treaty of Buffalo Creek to remove

from New York. Treaty of January 15, 1838, 7 Stat. 550

(“Buffalo Creek Treaty” or “Treaty”); see Oneida IJ, 470

U.S. at 269 n.24 (Stevens, J., dissenting). In the years shortly

before and after the proclamation of the Treaty, most of the

New York Oneidas sold nearly all their lands to New York

and left the State, and today the region is over 99 percent

non-Indian. Nevertheless, the Second Circuit held that

several parcels recently acquired by the Oneida Indian

Nation of New York (the “Nation”) within the 1788

reservation boundaries are not subject to local real property

taxation because the land remains “Indian country” under

18 U.S.C. § 1151(a). Oneida Indian Nation of New York v.

City of Sherrill, 337 F.3d 139 (2d Cir. 2003) (“Sherrill”).

At stake here is far more than the tax status of a few

isolated parcels of land. The Second Circuit’s conclusion

imperils the tax and civil regulatory jurisdiction that the State

has exercised over this 250,000-plus-acre area for more than

150 years. Under the reasoning of Sherrill, the Nation may

remove any land within this region from the tax rolls of

local governments simply by purchasing it, thereby

threatening the local tax base and financial well-being of

communities in a two-county area. The Nation has already

purchased, and purported to remove from the tax rolls, over

16,000 acres of land within the 1788 boundaries.

Additionally, because federal law restricts state

regulatory authority over tribal land in Indian country,

Sherrill creates a patchwork of tribal and state civil

jurisdiction that jeopardizes the orderly and uniform

application of law. As this Court has recognized, “when an

area is predominately populated by non-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.” Hagen v.

Utah, 510 U.S. 399, 420-21 (1994) (citation and quotation

omitted). Further, the Second Circuit disregarded the

importance of the justifiable expectations of those who have

lived in the area for generations. See id. at 421 (a finding

that the reservation was not diminished “would seriously

disrupt the justifiable expectations of the people living in

the area”). In particular, the court ignored the practical

consequences to the State and local governments, as well

as to the residents of the area, of returning a non-Indian

area that has long been governed by the State to Indian

country status.

The effects of Sherrill have already extended beyond

the Oneidas’ historic lands. In Cayuga Indian Nation of New

York v. Village of Union Springs, 317 F. Supp. 2d 128

(N.D.N.Y. 2004), the district court, citing Sherrill, enjoined

a New York village from enforcing its zoning and land use

laws on property acquired by the Cayugas for use as a

gaming hall within the approximately 64,000-acre Cayuga

land claim area in western New York. See also Seneca-

Cayuga Tribe of Oklahoma v. Town of Aurelius, 03-CV-690

(N.D.N.Y.) (involving other property within the Cayuga land

claim area). The State and its localities have a vital interest

in continuing to assert their longstanding jurisdiction over

these areas as well.'

HISTORICAL BACKGROUND OF THE

BUFFALO CREEK TREATY

The historical context of the Buffalo Creek Treaty, as

well as its terms and its aftermath, makes clear why the

Treaty disestablished or substantially diminished the

Oneidas’ claimed reservation. The Treaty itself is explicit

about its background and purpose: it was the successful

culmination of over 20 years of federal efforts to remove

the New York Indians, including the Oneidas, from New

York. Preamble, 7 Stat. at 550-51.

A. A Principal Goal of Federal Removal Policy Was to

Terminate Indian Sovereignty in the Eastern States.

During the early nineteenth century, the federal

government adopted a policy of removing the Indian tribes

from the eastern States to frontier regions not then populated

by settlers. In 1825, President Monroe recommended to

Congress the “removal of the Indian tribes from the lands

which they now occupy within the limits of the several States

... to the country lying westward and northward thereof.”

Message of January 27, 1825, II James D. Richardson, ed.,

A Compilation of the Messages and Papers of the Presidents,

1. The State’s emphasis on the correct interpretation of the

Treaty is not in derogation of the three other questions on which this

Court granted certiorari. Nor does the State concede that the Oneidas

had any valid land claim or other rights in the area before or after the

proclamation of the Treaty, or that their purported successors in

interest have any claim or rights today.

1789-1897 (1899) (“Messages of the Presidents’), at 280.

Four years later, President Jackson urged that Congress

“set[] apart an ample district west of the Mississippi, and

without the limits of any State or Territory now formed,” to

which the Indians should be encouraged to emigrate. First

Annual Message (1829), Messages of the Presidents, at 442,

458. Jackson noted that one of the problems to be remedied

by removal was the conflicting assertion of State and tribal

sovereignty within existing state boundaries, especially in

the south. Apparenily believing that Indian sovereignty in

New York had already ended, he asked rhetorically,

“(wlould the people of New York permit each remnant of

the Six Nations within her borders to declare itself

an independent people under the protection of the

United States?” Jd. at 457. Although Jackson stated that

removal “should be voluntary,” he emphasized that the

Indians “should be distinctly informed that if they remain

within the limits of the States they must be subject to their

laws.” Id. at 458-59.

Congress adopted the Indian Removal Act of 1830 in

response to Jackson’s proposal. Act of May 28, 1830, 4 Stat.

411 (“Removal Act”). The Removal Act authorized the

President to set aside federal lands west of the Mississippi

“for the reception of such tribes or nations of Indians as

may choose to exchange the lands where they now reside,

and remove there.” Section 1, 4 Stat. at 411-12. The core

purpose of federal removal policy was to “mak(e] a vast

area available for white settlement while reducing the

conflict of sovereign authority caused by the presence of

independent Indian governments within state boundaries.”

Felix S. Cohen, Handbook of Federal Indian Law 79 (1982

ed.); see also Remarks of Sen. Frelinghuysen, 6 Reg. Deb.

309 (1830) (“the design of the system of which the present

bill forms but a part, is really to remove all the Indian tribes

beyond the Mississippi, or, in case of their refusal, to subject

them to State sovereignty and legislation”).

B. The Oneidas’ Removal from New York Commenced

More Than 20 Years Before the Proclamation of the

Buffalo Creek Treaty.

In New York, the federal government actively

encouraged and aided Indian removal. In 1815, the

New York Indians sought the assistance and consent of the

United States to their removal to the west. 7 Stat. at 550. In

1821 and 1822, the federal government assisted the Oneidas

and other New York tribes in purchasing land in Wisconsin

from the Menominee and Winnebago Tribes. /d.; see also

Felix S. Cohen, Handbook of Federal Indian Law 420 (1942

ed.). President Monroe approved both purchases (the first

in full, the second in part). See New York Indians v. United

States, 170 U.S. 1, 6-7 n.1, 14 (1898), rev’g, 30 Ct. Cl. 413

(1895), after remand, 40 Ct. Cl. 448 (1905). New York

Indians recognized that the Wisconsin lands were intended

to serve as a new homeland for Indians removing from

New York. According to members of the Oneidas and other

tribes,

in the treaties of 1821 and 1822 it was originally

the intention of the tribes . . . and the policy of

this Government, to relieve the State of New York

of its entire Indian population, and to provide for

the Six Nations and their confederates a home in

the vicinity of Green bay [sic], which should

belong to them and their posterity forever.

Memorial of the Delegates from the Stockbridge, Munsee,

Brothertown, Oneida and St. Regis, to the President of

the United States, January 20, 1831, printed in Senate

Confidential Report on “A Treaty with the Menomonee [sic]

Tribe of Indians,” February 28, 1831, National Archives,

M668 (Ratified Indian Treaties 1722-1869) (“1831 Senate

Report”), R. 6, fr. 0336-0337.

The Menominees later disputed the validity of these land

purchases. 7 Stat. at 550. To settle the matter, in 1831, the

United States and the Menominees agreed to set aside

approximately 500,000 acres in Wisconsin as a home for :

the Oneidas and the other New York Indians in exchange

for a payment by the United States. Treaty of February 8,

1831, 7 Stat. 342; see also New York Indians, 170 U.S. at

11-14; Cohen (1942 ed.), supra, at 420. Representatives of

the New York Indians, including Oneidas who had recently

removed from New York, formally accepted and urged

ratification of the Menominee treaty, agreeing that the

Wisconsin acreage “contains a sufficient quantity of good

land, favorably and advantageously situated, to answer all

the wants of the New York Indians.” Treaty of October 27,

1832, 7 Stat. 405, 409 App.

In furtherance of their removal to Wisconsin, the

Oneidas, with federal encouragement, repeatedly sold land

to New York in the fourteen years preceding the signing of

the Buffalo Creek Treaty, and used proceeds to finance their

emigration. See Letter of Secretary of War John C. Calhoun

to Jasper Parrish, Sub-Agent of the Six Nations, April 15,

1822, VII W. Hemphill, ed., The Papers of John C. Calhoun,

1822-1823 43-44 (1973) (advising an Oneida faction that

President Monroe believed that the Six Nations should

voluntarily dispose of their New York lands and remove to

Wisconsin).? The Removal Act debates reveal that Congress

2. See Report of the Special Committee to Investigate the Indian

Problem of the State of New York (1889) (“1889 New York Report’),

(Cont’d)

was aware of these transactions. See Remarks of Sen.

Forsyth, 6 Reg. Deb. 337 (1830) (“[w]ithin a few months

the Governor of New York has, under a law of the State,

called together the Oneidas, and made a treaty with them”).

By the time the Treaty was signed in 1838, there were nearly

as many Oneidas in Wisconsin as in New York. 7 Stat. at

556 (Sch. A). The 620 Oneidas who remained in New York

occupied only about 5,000 acres. Jd.; Sherrill, 337 F.3d

at 163.

However, as non-Indian settlement in Wisconsin

increased during the 1830s, it became apparent that

further removal to Wisconsin was no longer feasible. Cohen

(1942 ed.), supra, at 420. The Buffalo Creek Treaty recited

that President Van Buren was

satisfied that various considerations have

prevented those still residing in New York from

removing to Green Bay [including] that many

who were in favor of emigration, preferred to

remove at once to the Indian territory, which they

(Cont’d)

at 287 (Treaty of August 26, 1824); at 291 (Treaty of February 13,

1829) (portion of sale proceeds to be used “for the support of a

Teacher at Green Bay”); at 293 (Treaty of October 8, 1829) (portion

of the sale proceeds to be paid when a majority of chiefs “signify. . .

their readiness to remove to Green Bay”); at 296 (dated April 2, 1833,

signifying readiness to remove); at 298 (Treaty of February 1, 1826)

(sale proceeds payable when the Governor is satisfied that the Indians

are about to remove to Green Bay); at 303 (Treaty of April 3, 1830)

(portion of sale proceeds to be used to superintend Oneida emigration

to Green Bay); at 305 (Treaty of February 26, 1834). The February

13, 1829 Treaty was signed on behalf of New York by then-

Governor Martin Van Buren, who as President of the United States,

subsequently proclaimed Buffalo Creek in 1840.

were fully persuaded was the only permanent and

peaceable home for all the Indians.

7 Stat. at 550. Accordingly, the United States and the

New York Indians entered negotiations to remove the

Indians to lands in what is now Kansas, then part of the

Indian territory. Cohen (1942 ed.), supra, at 420.

C. The Oneidas Agreed to Remove from New York in

the Buffalo Creek Treaty.

The Buffalo Creek Treaty recited that its purpose was

to carry out “the humane policy of the Government in

removing the Indians from the east to the west of the

Mississippi, within the Indian territory,” 7 Stat. at 551, and

its terms expressly provided for the removal of the Oneidas

from New York. In the treaty, the Oneidas and the other

New York Indians ceded to the United States nearly all the

lands previously granted them in Wisconsin (excluding a

tract that became the present-day Oneida reservation in

Wisconsin) and received a new 1,824,000-acre reservation

in modern-day Kansas “as a permanent home for all the New

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

Wisconsin, or elsewhere in the United States, who have no

permanent homes... .” Arts. 1, 2, 7 Stat. at 551-52. The

new reservation was to be the “future home” of, among

others, the 620 “Oneidas . . . [then] residing in the State of

New York.” Art. 2, Sch. A, 7 Stat. at 551-52, 556. The Treaty

emphasized that the new lands were being set aside for the

New York Indians in conformity with the provisions of the

Removal Act. Art 2, 7 Stat. at 551. Moreover, any of the

Tribes that did not “accept and agree to remove to” their

new lands within five years or at such other time prescribed

by the President would “forfeit all interest” in the new

western lands. Art. 3, 7 Stat at 552.

Other treaty provisions likewise reflect the Oneidas’

agreement to remove by providing for the exercise of tribal

sovereignty only in the west. The Treaty specified that the

Oneidas could henceforth “establish their own form of

government, appoint their own officers, and administer their

own laws” on the Kansas lands designated as “their new

homes.” Art. 4, 7 Stat. at 552. The treaty’s terms restricted

the Oneidas’ exercise of these powers of tribal sovereignty

and jurisdiction to “said country,” i.e., the part of the

new reservation where the “Oneidas [were] to have their

lands in the Indian Territory.” Arts. 4, 5, 7 Stat. at 552. The

United States promised to “protect and defend” the

New York Indians “in the peaceable possession and

enjoyment of their new homes.” Art. 4, 7 Stat. at 552.

Finally, continuing the prior pattern of Oneida land sales

to the State, followed by removal, the Treaty provided for

the disposition of the Oneidas’ remaining lands in New York.

Although New York, which held the right of preemption,

was not a party, and thus did not directly acquire the Oneidas’

lands by virtue of the Treaty itself, the Treaty provided that

the Oneidas “hereby agree to remove to their new homes in

the Indian territory, as soon as they can make satisfactory

arrangements with the Governor of the State of New York

for the purchase of their lands at Oneida.” Art. 13, 7 Stat.

at 554.

D. After Proclamation of the Treaty, Most Remaining

Oneidas Left New York and the State and Local

Governments Assumed Jurisdiction Over Their

Former Lands.

Following the proclamation of the Buffalo Creek Treaty

in April, 1840, the Oneidas entered into several treaties with

the State providing for the sale of most of their remaining

land in New York. New York Indians, 40 Ct. Cl. at 469-71;

1889 New York Report, at 309 (Treaty of June 19, 1840); at

329 (Treaty of June 19, 1840); at 343 (Treaty of March 13,

1841); at 356 (Treaty of May 23, 1842); at 363 (Treaty of

February 25, 1846). Within a decade, the vast majority of

the remaining Oneidas had left New York, although most

did not remove to Kansas. Approximately 400 Oneidas

removed from New York to Canada, and in 1846, about 150

removed to Wisconsin. New York Indians, 40 Ct. Cl. at 470.

By 1905, of the Oneidas still in New York, about 150 were

regarded as New York citizens, while approximately 128

resided on the Onondaga reservation and were not regarded

as citizens. Jd. By 1920, the Oneidas were down to 32 acres

of tribal land. United States v. Boylan, 265 F. 165 (2d Cir.

1920), error dismissed, 257 U.S. 614 (1921).

Although few New York Indians removed to Kansas,

in the late nineteenth centu: y, the Oneidas and the other

New York Indians successfully petitioned Congress for

permission to bring an action to seek compensation for the

Kansas lands, which during the intervening years had been

opened to white settlement and sold by the United States.

See Act of January 28, 1893, 27 Stat. 426. In explaining the

1893 legislation, Senator Platt, who reported the bill out of

committee, made clear that the Indians’ claim was grounded

in the surrender of their New York lands at the time of

Buffalo Creek Treaty and before. See 24 Cong. Rec. 588

(1893) (referring to “the claim of the New York Indians to

be compensated for certain lands which were given them in

lieu of the lands which they had in New York”). Platt

explained that the New York Indians had given up lands in

New York and received lands in Wisconsin, which they then

gave up in the Treaty for lands in Kansas. /d. He argued

that although the New York Indians never went to Kansas,

“they gave up the New York lands,” but the United States

never paid them “for the surrender of their lands in

New York.” /d. at 588-89.

This Court sustained the claim, holding that the

agreement of the New York Indians to remove west was

“(p]robably . . . the main inducement” for the United States

to set aside new lands for them in the Indian territory.

New York Indians, 170 U.S. at 15. Additionally, citing Article

13 of the Buffalo Creek Treaty, this Court held that,

notwithstanding the Oneidas’ failure to occupy the new

reservation, their agreement to remove “as soon as” they

sold their remaining lands to the State was sufficient to avoid

a forfeiture of the Kansas lands under the Treaty’s stipulation

that any of the tribes that did not timely “accept and agree

to remove to” those lands would forfeit them. Jd. at 26.

The Oneidas, as well as other New York Indians, shared in

the money judgment awarded by the Court. See New York

Indians, 40 Ct. Cl. at 467, 471-72.

Following the Oneidas’ departure, the State and its

localities assumed jurisdiction over all the former Oneida

lands within the 1788 boundaries, and this jurisdiction was

unquestioned until the events giving rise to this action.

The area has long since ceased to be recognized or treated

as a reservation by the federal government.’ Moreover, the

area has long since lost its Indian character, and for

generations has been home almost exclusively to non-

Indians. Census Bureau statistics for the year 2000 show

that the area is populated almost entirely by non-Indians.

See New York Quick Facts - Oneida County (Oneida

County’s non-Indian population made up 99.8 percent of

the county’s total population)*; New York Quick Facts -

Madison County (Madison County’s non-Indian population

made up 99.5 percent of the county’s total population).°

After examining this history of the Oneidas’ removal

from New York, the Indian Claims Commission (“ICC”)

found that the Oneidas sold the bulk of their land to New

3. As recently as 1997, the Department of Interior’s Annual

Report on Indian lands listed only 32 acres of land in Madison County

and none in Oneida County as under BIA jurisdiction. Jt. App.

(2d Cir.) 249-250. Federal government publications suggest that even

those 32 acres are not characterized as “reservation” land. See U.S.

Dept. of Commerce, Federal and State Indian Reservations and

Indian Trust Areas 398-421 (1974) (listing Indian reservations in

New York State but not listing a New York Oneida reservation).

Instead, the “Oneida Nation of New York is classified as ‘non-

reservation, tax-exempt land,’ and for that reason is not listed

separately in this handbook.” Jd. at 407. See also Confederation of

American Indians, Jndian Reservations - A State and Federal

Handbook, 194-205 (1986) (New York Oneida reservation not listed).

In Boylan, the Second Circuit referred to the 32 acres as an

“allotment.” 265 F. at 173; see 18 U.S.C. § 1151(c) (Indian country

includes “all Indian allotments, the Indian titles to which have not

been extinguished”).

4. http://quickfacts.census.gov/qfd/states/36/36065.h (last

visited July 13, 2004).

5. http://quickfacts.census.gov/qfd/states/36/36053.h (last

visited July 13, 2004).

York State with the knowledge of the United States in a

series of negotiated transactions beginning in 1795. Oneida

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

373, 375 (1978). The ICC also found that Article 13 of the

Buffalo Creek Treaty constituted a federal authorization for

the Oneidas to convey their remaining lands to the State.

Id. at 385. Additionally, it concluded that in purchasing

Oneida land, New York had been 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.... In New York State the state was carrying

out [the Federal Government’s removal] policy... .”

Id. at 405.°

SUMMARY OF ARGUMENT

The Treaty of Buffalo Creek disestablished or nearly

entirely diminished the Oneida reservation. It was designed

“to release the Eastern lands from Indian tenure and to

remove the Indians into a country not then settled by whites,”

New York Indians, 30 Ct. Cl. at 450, and thereby to end

the very types of jurisdictional conflicts involved here.

The Treaty continued the removal of the New York Oneidas

that had begun more than 20 years earlier with the

knowledge and encouragement of the United States.

The Oneidas and the other New York Indians agreed in the

6. Although two district court decisions held that the Buffalo

Creek Treaty did not retroactively ratify prior land purchases by the

State so as to extinguish any causes of action for violation of the

Indian Trade and Intercourse Act, 25 U.S.C. § 177, these cases did

not address the issue of whether the Treaty prospectively terminated

reservation status. See Cayuga Indian Nation v. Cuomo, 730 F. Supp.

485, 492-93 (N.D.N.Y. 1990), appeal pending (2d Cir.); Oneida

Indian Nation v. County of Oneida, 434 F. Supp. 527, 539 (N.D.N.Y.

1977), aff'd and remanded, 719 F.2d 525 (2d Cir. 1983), aff'd in

part and rev'd in part, 470 U.S. 226 (1985).

Treaty to give up most of the Wisconsin lands that had been

set aside for the removal of the New York Indians, and the

Oneidas remaining in New York also agreed to remove from

New York to a new reservation created for them by the

United States in the Indian territory halfway across the

continent. Following proclamation of the Treaty, the vast

majority of the remaining Oneidas sold their lands and left

New York. Although few Oneidas settled on the new

reservation, they ultimately sought and accepted the value

of their western lands following this Court’s decision in New

York Indians. By agreeing to remove from New York, by

selling nearly all their lands to the State and leaving New

York, and by accepting the new reservation, the Oneidas,

with Congressional approval, released and relinquished all

their tribal rights, including all tribal sovereignty, over their

former New York lands. See United States v. Santa Fe Pacific

R. Co., 314 U.S. 339, 356-58 (1941).

ARGUMENT

I. The Terms of the Buffalo Creek Treaty, its Role in

Effectuating Federal Removal Policy, and the Area’s

Subsequent Jurisdictional History Demonstrate That

the Treaty Ended Oneida Sovereignty over the

Former Reservation.

Aconsideration of the terms of the Buffalo Creek Treaty,

its historical role in implementing federal Indian policy, and

the area’s subsequent treatment leads to one conclusion —

the reservation has been disestablished or almost entirely

diminished.

1. Like all federal Indian treaties, the Buffalo Creek

Treaty must be interpreted in view of its historical context.

See Minnesota v. Mille Lacs Band of Chippewa Indians, 526

U.S. 172, 196 (1999) (this Court looks “beyond the written

words to the larger context that frames” the treaty, including

the history of the treaty, the negotiations and the practical

construction adopted by the parties). In particular, the manner

in which the Indians understood the terms of an agreement is a

key guide in construing federal Indian treaties. Jd. Of course,

this Court “cannot ignore plain language that, viewed in

historical context and given a fair appraisal, clearly runs counter

to [the] tribe’s later claims.” Oregon Dep t of Fish and Wildlife

v. Klamath Indian Tribe, 473 U.S. 753, 774 (1985) (citation

and internal quote omitted); see also Choctaw Nation v. United

States, 318 U.S. 423, 432 (1943) (“Indian treaties cannot be -

rewritten or expanded beyond their clear terms to remedy a

claimed injustice”).

Because this Court has repeatedly faced the question of

when a reservation has been disestablished and diminished in

cases interpreting allotment-era surplus land acts, the principles

articulated in those decisions are applicable in determining

whether the Buffalo Creek Treaty disestablished or diminished

the Oneidas’ reservation. Under these cases, the critical inquiry

is whether there is a “congressionally manifested intent” that

reservation status end. Rosebud Sioux Tribe v. Kneip, 430 U.S.

584, 587 (1977); see also South Dakota v. Yankton Sioux Tribe,

522 U.S. 329, 343 (1998) (“[o]ur touchstone to determine

whether a given statute diminished or retained reservation

boundaries is congressional purpose”’); Hagen, 510 U.S. at 414

(reservation diminishment is evidenced by “congressional

intent with respect to those lands inconsistent with the

continuation of reservation status”). Although congressional

intent to terminate or diminish a reservation must be “clear

and plain,” and this Court “resolve[s] any ambiguities in favor

of the Indians, aid . . . will not lightly find diminishment,” the

Court will not disregard clear expressions of intent to diminish

or terminate a reservation. Yankton, 522 U.S. at 343-44

(citations and quotations omitted); DeCoteau v. District

County Court for the Tenth Judicial District, 429 U.S. 425,

447 (1975). This Court gives primacy to congressional intent

to diminish in the surplus land act cases even where the

enactment merely ratifies an agreement previously

negotiated with the Indians. See Yankton, 522 U.S. at 339

(statute ratified and incorporated agreement in its entirety);

DeCcteau, 420 U.S. at 441 (same).

In the surplus land act cases, as in cases interpreting

treaties, this Court does not limit its inquiry to the text alone.

Also relevant are the historical context surrounding the act’s

passage, and the subsequent treatment, jurisdictional history,

and settlement pattern of the area in question. See Yankton,

522 U.S. at 344; Rosebud, 430 U.S. at 587; DeCoteau,

420 U.S. at 442; see also Hagen, 510 U.S. at 412 (“our

traditional approach to diminishment cases . . . requires us

to examine all cf the circumstances surrounding the opening

of areservation”’). In evaluating the subsequent jurisdictional

history, “the single most salient fact is the unquestioned

actual assumption of state jurisdiction over the . . . lands.”

Rosebud, 430 U.S. at 603.

All of these factors indicate that Congress intended, and

even under the most generous construction of the Buffalo

Creek Treaty, the Oneidas must have understood, that their

agreement to remove terminated their jurisdiction over the

lands they no longer occupied in 1838; at most only the

5,000 acres that the Oneidas then occupied would retain

reservation status, and then only until the Oneidas sold them

and left. And in fact, within a decade after the Treaty’s

proclamation, nearly all the Oneidas had done so,

relinquishing their jurisdiction over those lands as well.

2. The intent of both the United States and the Oneidas

to disestablish or nearly entirely diminish the Oneidas’

New York reservation is apparent from the terms of the

Buffalo Creek Treaty. It documented the long history of

federal efforts to remove the Indians, including the Oneidas,

from New York, and stated that the removal agreed to in

the Treaty was undertaken pursuant to the federal Removal

Act. Additionally, in Article 13, the Oneidas agreed to

remove “as soon as” they disposed of their remaining New

York lands.

The Buffalo Creek Treaty is flatly inconsistent with

continuing Oneida sovereignty in the area. The Oneidas’

agreement to dispose of their New York lands and remove

to a new “permanent home” in the Indian territory and to

“establish their own form of government” and “administer

their own laws” there, rather than on the New York lands

from which they had just agreed to remove, superseded

whatever rights the Oneidas may have had in the region

under the 1794 Treaty of Canandaigua. Treaty of

November 11, 1794, 7 Stat. 44.’ Their agreement to remove

“can by no means be reconciled with” the Nation’s claim to

jurisdiction over the area under the 1794 Treaty. Yankton,

522 U.S. at 345.

The Oneidas could not reasonably have expected to

continue to exercise jurisdiction over lands they had already

left and were now leaving. See Menominee Indian Tribe v.

Thompson, 161 F.3d 449, 458 (7th Cir. 1998) (Menominees

“could not reasonably have expected to continue” to exercise

7. Article II of the 1794 Treaty expressly contemplated that the

Oneidas might one day sell their lands, providing 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.”

7 Stat. at 4..

hunting and fishing rights retained in 1831 treaty following an

1848 treaty in which they agreed to leave Wisconsin and move

to a new reservation 300 miles away), cert. denied, 526 U.S.

1066 (1999). And it is inconceivable that the United States

intended to terminate Oneida sovereignty over the 5,000 acres

the Oneidas then occupied and remove them half a continent

away while simultaneously preserving their sovereignty over

a quarter of a million acres of land that the United States had

encouraged them to sell to New York and that they no longer

even occupied in 1838. These lands not only had been claimed

by the white settlers who had moved into the area by 1838, but

had been sold by the Oneidas themselves for disposition to

those settlers. Thus, Congress’s approval of the Oneidas’

agreement to sell their remaining lands and remove from New

York reflected its recognition of the de facto diminishment that

had already occurred. See Solem v. Bartlett, 465 U.S. 463, 471

(1984) (citations omitted).

3. This interpretation is confirmed by the Treaty’s

broader historical context. The Oneidas’ agreement to

remove from New York to a new home in the middle of the

American continent vas the culmination of a removal

process that had begun more than 20 years earlier with the

participation and encouragement of the federal government.

By 1838, nearly half of the New York Oneidas had removed

to Wisconsin, and the New York Oneidas occupied only

about 5,000 acres within the 1788 boundaries. Both the

Indians and the United States acknowledged that this process

was designed to remove the Indians, including the Oneidas,

from New York State to a remote part of the western frontier

where they would be far from advancing white settlements.

See 1831 Senate Report, R. 6 at fr. 0336-0337. During the

two decades leading up to the Buffalo Creek Treaty, the

frontier continued to move westward; the Indians’ new home

was initially to be in Wisconsin, and then in the Indian

territory west of the Mississippi. But the goal of removing

the Indians from New York remained constant. Moreover,

the federal removal policy’s goal of avoiding conflicts of

state and tribal sovereignty could be accomplished only if

Oneida sovereignty over the area they no longer occupied,

and the area from which they were to remove, was ended.

“In view of this historical setting, it cannot now be fairly

implied that tribal rights of the [Indians] in lands outside

the [new] reservation were preserved.” Santa Fe, 314 U.S.

at 358. Contrary to what the Second Circuit believed, the

“central bargain” of Buffalo Creek was not simply the

Indians’ exchange of their Wisconsin lands for new lands

west of the Mississippi. See Sherrill, 337 F.3d at 160;

see also id. at 164 (the land exchange was the “rationale for

the award” to the New York Oneidas and others in New York

Indians). The Second Circuit failed to recognize that the

Wisconsin lands and the Oneidas’ New York lands were

inextricably linked because the Wisconsin lands had been

set aside for the removal of all New York Indians. Indeed,

in 1832, New York Indians, including Oneidas who had

recently removed, accepted the United States’ treaty with

the Menominees regarding this land, agreeing that the

Wisconsin lands were sufficient for “all” the “wants” of the

New York Indians. Treaty of October 27, 1832, 7 Stat. 405,

409 App; see also Brief of Amicus Curiae United States at

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

226 (1985) (No. 83-1065). The Oneidas’ surrender in the

Buffalo Creek Treaty of most of the Wisconsin lands

provided to them in the Menominee treaty was simply

another step in their ongoing removal from New York.

As Senator Platt recognized decades later in explaining why

the Indians should be allowed to sue the United States for

the value of the western reservation they had never occupied,

the Kansas lands were given to the Indians in lieu of their

New York lands. See 24 Cong. Rec. 588-89 (1893).

4. Finally, the treatment of the area within the 1788

boundaries following the Treaty’s proclamation strongly

supports the view that both Congress and the Oneidas

understood that the Treaty would terminate Oneida

sovereignty in New York. After 1840, the remaining Oneidas

sold virtually all of their remaining lands, and most left New

York. For over a century and a half, state and local

governments have exercised jurisdiction over nearly all the

lands within the 1788 boundaries, and these lands have been

populated almost exclusively by non-Indians. The Second

Circuit’s cavalier dismissal of this history, Sherrill, 337 F.3d

at 163-64, is particularly untenable given that the Oneidas’

removal both before and after the Treaty’s signing was

undertaken by New York and the United States precisely

with the goal of ending the Oneidas’ sovereign rights in New

York. In contrast to the surplus land act allotments, where

the Indians were expected to remain on their allotted lands

in the vicinity of lands that were opened to settlement by

others, the premise of the Buffalo Creek Treaty was that the

Oneidas were to leave New York entirely and relocate on a

new reservation. That the area has been for many years

populated almost exclusively by non-Indians bears out this

expectation. As this Court has held, “[w]here non-Indian

settlers flooded into the opened portion of a reservation and

the area has long since lost its Indian character, we have

acknowledged that de facto, if not de jure, diminishment

may have occurred.” Solem, 465 U.S. at 471 (citations

omitted); see also Rosebud, 430 U.S. at 604-05 (the

“longstanding assumption of jurisdiction by the State over

an area that is over [99 percent] non-Indian ... not only

demonstrates the parties’ understanding of the meaning of

the Act, but has created justifiable expectations which should

not be upset” by the strained reading of the statutes urged

by the tribe).

Not surprisingly, the federal government has long since

ceased to treat the 250,000-plus-acre area as a reservation.

See Rosebud, 430 U.S. at 604-05 (the fact that neither

Congress nor the Bureau of Indian Affairs has sought to

exercise its authority over an area or to challenge the State’s

exercise of authority is a factor entitled to weight as part of

the jurisdictional history). Accordingly, although a small

number of Oneidas remained in New York, and continued

to occupy a small parcel that eventually dwindled to 32

acres, the language, background and subsequent history of

the Buffalo Creek Treaty compel the conclusion that the

Oneidas relinquished all of their tribal sovereignty over all

their former lands in New York when they accepted the new

western reservation.

II. The Oneidas’ Agreement to Remove Was Binding

and Relinquished Their Sovereignty over Their

Former New York Lands.

1. There was nothing conditional about the Oneidas’

relinquishment in the Buffalo Creek Treaty of their

sovereignty over New York lands. In reaching the contrary

conclusion, the Second Circuit characterized the Treaty as

an “agreement to agree” conditioned upon subsequent land

sales to New York State. Sherrill, 337 F.3d at 161. The

language of the Treaty itself, in which the Oneidas agreed

to remove “as soon as” they disposed of their lands, not

“only if” they were able to sell them, refutes this

interpretation. The phrase “as soon as” refers to when, not

whether, the Oneidas were to remove.*® That most of the

remaining Oneidas sold nearly all their lands to New York

and removed within ten years after the Treaty’s proclamation

strongly suggests that they shared this interpretation. The

Second Circuit’s statement that “the sales to New York State

were never accomplished, and the planned removal never

took place,” Sherrill, 337 F.3d at 162, is simply wrong.

Although few Oneidas removed to Kansas, most Oneida land

was sold to New York and the vast majority of the Oneidas

left the State. See New York Indians, 40 Ct. Cl. at 469-71.

2. More importantly, characterization of the Oneidas’

agreement to remove as conditional is contradicted by this

Court’s decision in New York Indians. In short, this Court

has already interpreted the Buffalo Creek Treaty as an

agreement by the Oneidas to remove. Indeed, as the Court

recognized, the Indians’ agreement to remove to the west

was “[p]robably ... the main inducement” for the United

States to set aside new lands for them in the Indian territory.

New York Indians, 170 U.S. at 15. By virtue of that

agreement, the Oneidas obtained an interest in the new lands

that the United States became obliged to pay for years later,

after it sold the land to non-Indian settlers. See id. at 26, 36.

The possibility that the Oneidas might not actually remove

8. This Court recently characterized a treaty containing an

agreement to remove “as soon as” an expected imminent event

occurred as a removal treaty. See Mille Lacs, 526 U.S. at 189-90 n.4

(1999) (noting that the United States negotiated several “removal

treaties” with Indian tribes in 1837 including one with the Saganaws,

7 Stat. 528, 530, in which “said tribe agrees to remove from the

State of Michigan, as soon as a proper location can be obtained”).

and their failure actually to occupy the Kansas lands did

not undo their agreement or vitiate their rights to that

territory. /d.

3. The benefit of the Oneidas’ new reservation came

with a corresponding burden, which the Nation now seeks

to disavow: by agreeing to remove, the Oneidas relinquished

tribal rights over their New York lands. See, e.g., Sokaogon

Chippewa Community v. Exxon Corp., 2 F.3d 219, 225

(7th Cir. 1993) (tribe’s acceptance of treaty benefits implies

acceptance of treaty burden of surrender of right of

occupancy), cert. denied, 510 U.S. 1196 (1994). This Court’s

precedent establishes that in accepting a new reservation,

an Indian tribe may release and relinquish its rights in other

lands. Thus, in United States v. Santa Fe Pacific R. Co., the

United States undertook by statute to extinguish Indian

title to certain western land for the benefit of a railroad,

subject to the limitation that that title could be extinguished

only by the Indians’ “voluntary cession.” Santa Fe, 314 U.S.

at 344. The Walapai Indians requested that a new reservation

be created for them because of the encroachment of settlers

onto their lands. The President created the new reservation

by executive order, although only a few Walapais actually

moved there. Nevertheless, this Court found that there was

“an indication that the Indians were satisfied with the

proposed reservation.” /d. at 357. It concluded that even

though the Walapais never made an explicit “voluntary

cession” of their former lands, the creation of the new

reservation and the Walapai’s acceptance of it amounted to

a relinquishment of the Walapai’s “tribal rights in lands

outside the reservation and notoriously claimed by others.”

Id. at 357-58.° In this case, there is far more than “an

indication” that the Oneidas were “satisfied” with their new

reservation: they entered into a federal treaty agreeing to

remove far away to the new reservation and ultimately

recovered the value of the new reservation in this Court.

Consequently, their “acquiescence in that arrangement”

relinquished their sovereignty over their former lands

outside the new reservation.'® /d. at 358.

Ill. The Additional Reasons Offered by the Second

Circuit For Its Interpretation of the Treaty Are

Unpersuasive.

1. The primary rationale relied upon by the Second

Circuit in concluding that the Oneidas could have

understood the Buffalo Creek Treaty as preserving

sovereignty over their former New York lands was that their

agreement to remove was conditional. See Sherrill, 337 F.3d

at 161. Only in light of this view do canons of treaty

9. In Santa Fe, this Court found that creation of an earlier

reservation never accepted bv the Walapais did not extinguish their

claim to their old lands. Santa Fe, 314 U.S. at 354-55. That holding

does not control this case because the Oneidas agreed in the Buffalo

Creek Treaty to remove from New York to their new reservation and

accepted the benefit of the new reservation.

10. The United States’ claim in its amicus curiae brief in

opposition to the petition for certiorari that Santa Fe is inapposite

here because it involved aboriginal rather than reservation land is

belied by this Court’s application of Santa Fe to the Oneida land

claim. See Brief for the United States as Amicus Curiae (No. 03-

855) at 11-12; Oneida J], 470 U.S. at 247-48 (citing Santa Fe, 314

U.S. at 346, 354).

construction relied upon by the circuit court, id. at 158-59;

see also Mille Lacs, 526 U.S. at 196; Oneida I], 470 U.S. at

247, become helpful to respondents. In support of this view,

the Second Circuit cited a statement apparently made to the

Oneidas by Ransom Gillet, the United States treaty

commissioner who negotiated the Buffalo Creek Treaty.

See Brief of Respondents Oneida Indian Nation of New

York, et al., in Opposition To the Petition For Certiorari at

10a-11a (No. 03-855); Sherrill, 337 F.3d at 161-62. Even if

the statement is appropriately considered in interpreting the

Treaty,'' the court misunderstood its import.

At most, Gillet’s statement advised the Oneidas that they

would not be forcibly removed from the lands they occupied

in 1838. This was not a new policy. Such voluntary removal

was consistent with federal removal policy as articulated in

the Removal Act’s text (Indians could “choose to exchange”

their lands for new western lands), and with President

Jackson’s view that removal “should be voluntary.”

11. An unauthenticated photocopy of a handwritten version of

this document appears in the record below as an exhibit to an attorney

affidavit. Jt. App. (2d Cir.) 1312-13. In this Court, the Nation included

a transcription of the Gillet statement in the appendix to its brief in

opposition to the petition for certiorari. Respondent’s Brief

in Opposition to the Petition for Certiorari, 10a-lla. The Gillet

Statement was not incorporated into the Treaty’s text, unlike a similar

assurance given to the St. Regis Indians. Supp. Art., 7 Stat. at 561,

564 (explicitly providing that the United States would not compel

the St. Regis Indians to remove). See New York Indians, 170 U.S.

at 22-23 (treaty proviso adopted by the Senate never became

effective because there was no evidence that the President

ever approved it.)

See Removal Act, 4 Stat. at 411-12; First Annual Message,

at 458. Consistent with this policy, and with federal

encouragement, the Oneidas had been voluntarily removing

from New York to Wisconsin during the 20 years before the

Treaty’s proclamation.

Nothing in the Gillet statement suggested that the

Oneidas’ original 250,000-plus-acre reservation was to

remain intact. In fact, the statement contradicted that view,

advising the Oneic as that “[t}hey can, if they choose to do

so, remain where they are forever” (emphasis added). Even

giving this statement the construction most favorable to the

Oneidas, it would have meant that, at most, the Oneidas

could continue to occupy only the 5,000 acres they had held

in 1838, and that for as long as they did so, the tract would

retain reservation status.'? The Gillet statement certainly

cannot be construed to assure the Oneidas that their

reservation would continue even after they decided to sell

their remaining lands to New York and leave the State. Thus,

“as soon as” the remaining Oneidas sold all but 32 acres of

their remaining lands, they had no reason to believe that

tribal sovereignty would continue over lands they no longer

occupied.

12. The better view, consistent with federal removal policies,

is that the Gillet statement did not assure the Oneidas that tribal

jurisdiction would continue even over any lands that they retained

after the Buffalo Creek Treaty. See, e.g., First Annual Message at

459 (the Indians “should be distinctly informed that if they remain

within the limits of the States they must be subject to their laws”);

Remarks of Sen. Frelinghuysen, 6 Reg. Deb. 309 (1830) (Indians

refusing to remove would be subject “to State sovereignty and

legislation”).

Gillet’s promise that the Oneidas would not be forcibly

removed therefore cannot qualify or limit the Oneidas’

binding agreement to remove from New York. His statement

should be given the “sensible construction” that the United

States would not force the remaining Oneidas to leave New

York before they sold their remaining lands to the State,

rather than being understood to impugn their agreement to

remove and terminate their sovereignty in New York."

See, e.g., Yankton, 522 U.S. at 344-46 (where provision

apparently preserving treaty rights appeared in text of Indian

land cession agreement that Congress codified in surplus

land act, this Court gave the provision a “sensible

construction” rather than reading it to “eviscerate[]” the

clear intent of the agreement to terminate the treaty rights).

Indeed, in his letter to the Indian Affairs Commissioner,

Gillet himself characterized his statement simply as an

assurance that the Oneidas would not be compelled to

remove without selling their land to New York. Respondents’

Brief in Opposition, at 7a.

Accordingly, respondents can find no comfort in the canons

of treaty interpretation. As this Court concluded in Yankton,

“(t]he principle according to which ambiguities are resolved

13. In Fellows v. Blacksmith, 60 U.S. 366 (1857), this Court

held that only the United States could forcibly remove the Senecas

from their reservations pursuant to Buffalo Creek. See also New York

ex rel. Cutler v. Dibble, 62 U.S. 366, 371 (1859) (same); The New

York Indians, 72 U.S. 761, 770 (1867) (New York could not tax the

Seneca lands “[u)ntil the Indians have sold their lands, and removed

from them in pursuance of the treaty stipulations”). Similarly, the

Second Circuit’s earlier reference in Boylan to the “reservation” as

in existence at the time of the Oneidas’ 1842 treaty with New

York, see Sherrill, 337 F.3d at 162-63, at most indicated that the

“reservation” continued after Buffalo Creek to the extent that the

Oneidas continued to occupy land in New York.

to the benefit of Indians tribes is not. . . ‘a license to disregard

clear expressions of tribal and congressional intent.’” 522 U.S.

at 349, citing DeCoteau, 420 U.S. at 447; see also Rosebud,

430 U.S. at 587 (canon “does not command a determination

that reservation status survives in the face of congressionally

manifested intent to the contrary”). This Court must give effect

to the Buffalo Creek Treaty’s terms as agreed to by Congress

and the Oneidas: “Congress and the tribe spoke clearly. Some

might wish they had spoken differently, but we cannot remake

history.” DeCoteau, 420 U.S. at 449.

2. The Second Circuit’s other arguments in support of its

interpretation are likewise meritless. The court erred in relying

heavily on the absence of explicit language of cession and

payment in the treaty to support its conclusion that the treaty

did not terminate the Oneida reservation. See Sherrill, 337 F.3d

at 159-61. The underlying fee to the Oneida lands was held by

New York State, which was not a party to the Buffalo Creek

Treaty, rather than by the United States. See Oneida Indian

Nation v. County of Oneida, 414 U.S. 661, 670 (1974) (original

13 states held the fee title or preemptive right to Indian lands

within their boundaries). Instead of ceding their New York lands

to the United States, which had no right to them, the Oneidas

agreed in Article 13 to remove to the new reservation “as soon

as” they sold their remaining New York lands to the State.'

14. The Court erroneously contrasted the Oneidas to the Senecas

and the Tuscaroras, who in the Buffalo Creek Treaty expressly ceded

lards to Ogden and Fellows, the holders of the right of preemption

to those Tribes’ lands in western New York. 7 Stat. at 557-61.

See Sherrill, 337 F.3d at 161. Unlike New York State, Ogden and

Fellows were parties to the Treaty, and thus the Treaty contained a

cession directly to them. Because New York was not a party to the

Treaty, the most the Oneidas could agree to was removal following

separate sales of their remaining lands to New York. 7 Stat. at 554.

3. Finally, the court below mistakenly held that the

New York Oneidas were not intended to share in the Kansas

lands because they “had a permanent residence in New York

State.” Sherrill, 337 F.3d at 162 n.17. Article 2 of the Treaty,

read as a whole, refutes that finding. The Buffalo Creek

Treaty set apart an amount of land in Kansas more than

sufficient to provide 320 acres to each of the New York

Indians enumerated in the census set forth in Schedule A to

the treaty, including the 620 New York Oneidas specifically

identified in Schedule A. See Sch. A, 7 Stat. at 556; New

York Indians, 40 Ct. Cl. at 458. The treaty expressly provided

that the Kansas lands were “intended as a future home” for

the Oneidas residing in the State of New York, with the land

to be divided equally according to the numbers set forth

in Schedule A. 7 Stat. at 551-52. Moreover, the New

York Oneidas shared in the recovery in New York Indians.

Accordingly, the only viable conclusion is that the Oneidas

agreed in the Buffalo Creek Treaty to remove from New

York, and the Treaty disestablished or nearly entirely

diminished the Oneidas’ 1788 reservation.

CONCLUSION

For the foregoing reasons, amicus curiae State of New

York respectfully urges this Court to reverse the judgment

of the United States Court of Appeals for the Second Circuit

and declare that the lands at issue are not “Indian country,”

because the Oneidas’ 1788 reservation was disestablished

or almost entirely diminished by the Buffalo Creek Treaty.

Respectfully submitted,

Dwicut A. HEALY Eiot SPItzeER

Wuite & Case LLP Attorney General of the

1155 Avenue of the Americas _ State of New York

New York, NY 10036 CaIrTLin J. HALLIGAN*

Solicitor General

DANIEL SMIRLOCK

Deputy Solicitor General

Peter H. ScuHIFF

Senior Counsel

ANpREW D. BING

Assistant Solicitor General

120 Broadway

New York, NY 10271

* Counsel of Record (212) 416-8016

Attorneys for Amicus Curiae

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