Federal court rulings belie long struggle
Posted: June 03, 2005
by: Jim Adams / Indian Country Today
Analysis
ONEIDA NATION HOMELAND, N.Y. - Legal strategists are warning tribes to avoid taking cases to an unpredictable U.S. Supreme Court, especially since its anti-Indian ruling in the recent City of Sherrill v. Oneida Indian Nation of N.Y. case. But a series of new decisions in New England, and the origin of the Oneidas' land suit itself, underscore that tribes have expended decades of effort to be heard in federal courts and that the alternatives are worse.
Recent rulings by the U.S. 1st Circuit Court of Appeals are beginning to bring most of the New England states in line with the rest of the country in taking federal jurisdiction over Indian sovereignty cases. The issue is especially troubled here because of limits the states tried to place on tribal sovereignty in the 1980s when they negotiated a series of land claims settlement acts.
But in a strong decision in favor of the Aroostook Band of Micmac Indians in Maine and a mixed but fundamentally helpful ruling for the Narragansett Indian Tribe of Rhode Island, separate panels of the 1st Circuit have declared that sovereignty survives and must be respected.
The rulings hinged on a technicality, the ''well-pleaded complaint rule'' that had worked to keep highly charged cases, such as the paper company lawsuit and contempt ruling against the Penobscot and Passamaquoddy Indians, under the thumbs of state jurists. The Micmacs won a stronger statement than the Narragansetts that they deserved federal jurisdiction, and this discrepancy is bound to come up in the inevitable appeal. But it was a Supreme Court ruling on just this technicality, way back in 1974, that preserved the Oneidas' land claim and made a generation of land rights suits possible in the first place.
(The Oneida Indian Nation owns Four Directions Media, publisher of Indian Country Today, but the importance of this case extends well beyond self-interest.)
Anti-Indian emotion and propaganda has flared since the March 29 Sherrill decision, which the court refused to rehear May 23. But it's worth noting that the 8 - 1 decision written by Justice Ruth Bader Ginsberg affirmed the court's two earlier rulings allowing the still-pending Oneida land suit to go forward. And it's well worth rereading the first decision, written in 1974 by the late Justice Byron White: a hero to many as both football player and jurist.
The Oneida Indian Nation of New York and the Oneida Indian Nation of Wisconsin sued in U.S. District Court at the beginning of the decade over the 300,000-acre reservation guaranteed by treaty in 1788 but which was illegally obtained by New York state. The first case, against Oneida and Madison counties, was a test, asking only for damages equaling fair rental value from Jan. 1, 1968 through Dec. 31, 1969. (The original lawyer for the tribes, George C. Shattuck, was a guest recently at a conference at the Syracuse University Center for Indigenous Law, and expressed bemusement that the suit was still going on.)
The District Court refused to take jurisdiction, and so did the 2nd Circuit Court of Appeals (which covers New York and Connecticut). The issue that came to the Supreme Court in 1973 was the ''well-pleaded complaint rule.'' In an attempt to limit the workload of federal judges, courts had put a narrow definition on their jurisdiction over issues ''arising from'' the ''Constitution, laws, or treaties of the United States.'' If the federal issue came as a defense in a state suit not as an essential part of the case, the Supreme Court had somewhat vaguely said, it could be handled by state courts.
Even though federal jurisdiction clearly included Indian tribes, the District Court had said that the Oneidas' suit arose under state land law and belonged in state court. The unanimous Supreme Court strongly disagreed. In a decision issued Jan. 21, 1974, less than three months after oral arguments, Justice White wrote that the case ''rests on the not insubstantial claim that federal law now protects, and has continuously protected from the time of the formation of the United States, possessory right to tribal lands.''
In a point of current interest, he discussed the 1867 case The New York Indians, striking down a New York state attempt to tax reservation lands of the Seneca tribe. ''The State's attempt to tax reservation lands was invalidated as an interference with Indian possessory rights guaranteed by the Federal Government,'' he wrote.
''The Court,'' White said, ''referred to the Indian right of occupancy as creating 'an indefeasible title to the reservations that may extend from generation to generation, and will cease only by the dissolution of the tribe, or their consent to sell to the party possessed of the right of pre-emption,' and noted that New York 'possessed no power to deal with Indian rights or title.'''
White's analysis cuts to the heart of New York Gov. George Pataki's now-defunct attempt to force through settlements of the Oneida and Cayuga land suits. Although Pataki attempted to impose terms on the New York Oneidas by legislation, White's words make it clear he had absolutely no authority to do so. Only Congress has the power to impose a settlement, and only Congress has the right to ratify an agreement freely negotiated between a tribe and the state.
Pataki has tried to browbeat the Oneidas into making a settlement by June 23, the end of the current state legislative session. (His not-so-veiled threat was a query to the National Indian Gaming Commission about the legal status of the Oneida's Turning Stone Resort and Casino in the aftermath of the Sherrill decision.) But as even Ginsburg made clear, there is nothing in the Oneida cases that gives New York state the power to dispose of Indian rights.
White raised a further question. In reaction to earlier rulings, perhaps, New York state went to Congress in the early '50s for a law giving it criminal and some civil jurisdiction over reservations. But White noted that this law, opposed by the tribes, specifically exempted land deals and taxation. In other words, Pataki has no more authority to impose a tax compact on the tribes than he does a land settlement. Does this mean that even a tribal ''trade agreement'' that gives up tax immunity at casinos, or at car dealerships on reservations, would be illegal unless ratified by Congress?
Anti-tax tribal members might want to get an answer on these points. And if they try, we suspect they will be glad to have access to the federal courts.
Special thanks to Tecumseh Brown-Eagle for the lead.
June Reports
Last updated on June 09, 2005