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Federal court rulings belie long struggle

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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

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 300,000acre 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.)

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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

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