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Footnote 1: A reminder for Indian country

At issue in the case City of Sherrill v. Oneida Indian Nation of N.Y. is
roughly 17,000 acres of land within the area of the historic Oneida Indian
Reservation of some 270,000 acres. The Oneida Indian Nation purchased these
lands in the late 1990s on the open real estate market.

When the Oneida Indian Nation, on the basis of its sovereign status,
refused to pay property taxes assessed by the city of Sherrill, the city
threatened the Oneidas with eviction and the dispute ended up in court. The
Oneida Nation won a huge victory in the U.S. Court of Appeals for the 2nd
District, and the U.S. Supreme Court agreed to hear the case.

During oral arguments in the Sherrill case, Justice Sandra Day O'Connor
asked, "If the tribe has sovereignty status with regard to this property,
then presumably this city can't tax it. So we have to decide that, do we?"
To this question, Ira Sacks, attorney for the city of Sherrill, replied:
"Yes, you do, your Honor."

And decide they did. Eight out of nine justices held that "'standards of
federal Indian law and federal equity practice preclude the tribe from
rekindling embers of sovereignty that long ago grew cold." On the basis of
the principle of laches, the court said that by allowing two centuries to
elapse before they raised a legal challenge, the Oneidas had not pursued
their challenge in a timely manner.

In its March 29 ruling, the court stated in Footnote 1: "Under the
'Doctrine of Discovery' ... fee title to the lands occupied by Indians when
the colonists arrived became vested in the sovereign - first the
discovering European nation and later the original states and the United
States."

Footnote 1 can be understood in light of Chief Justice John Marshall's
statement in Cherokee Nation v. Georgia (1831): The Indians "occupy a
territory to which we assert a title independent of their will, which
[title] must take effect in point of possession when their right of
possession ceases." The basis upon which the United States asserted "a
title" to Indian lands was the infamous Doctrine of Christian Discovery,
most fully articulated in Johnson v. M'Intosh (1823).

So, how did the European colonists who arrived in North America become, as
the Supreme Court claims in Sherrill, "vested" with "fee title" to "the
lands occupied by Indians?" The Europeans became vested by generously
giving themselves a right (title) to Indian lands on the basis of the bogus
claim that they, as Christians, had discovered the "heathen" lands of North
America.

In both the Johnson v. M'Intosh and Cherokee Nation v. Georgia rulings,
Marshall said that this self-granted and self-vested "fee title" takes
effect as soon as the Indians give up their own right of possession. Thus,
whenever Indians sell, convey or cede any portion of their lands to the
Europeans (or, later, to Americans) by treaty, the inchoate self-granted
European title becomes a fully completed "fee title," which is
"consummated" when non-Indians take possession.

Based on the Sherrill ruling, once lands are ceded by an Indian nation,
even if the cession was illegitimate or in violation of a federal law such
as the 1790 Non-Intercourse Act - which was at issue in this case -
original Indian title and sovereignty in relation to those lands cannot be
restored. This is true even if the Indian nation in question has reacquired
those lands by purchasing them on the open real estate market.

The court suggested that the only possible exception to this rule is if the
purchased lands are given federal trust status pursuant to federal law. In
the opinion of the court, the existence of the Indian nation and its
sovereign status does not, in and of itself, exempt reacquired Indian lands
from taxation by a non-Indian municipality such as the city of Sherrill.

Land is one of the most essential and integral components of any Indian
nation's continued existence, along with a population, a distinct language
and culture, a history and a sovereign governmental decision-making body.
Because every Indian nation's existence is tied directly to its land base,
the effort by New York state in the late 18th and early 19th centuries to
take over and acquire Oneida lands was an attack against the very existence
of the Oneida Nation.

The Sherrill decision constitutes part of an attack on the existence of the
Oneida Nation, and of Indian nations generally, by creating the presumption
that Indian nations cannot reacquire their own ancestral lands through
purchase, and then make those lands a part of that nation's sovereign
territory, except, perhaps, through the federal trust system.

Based on Sherrill, the self-vested title based on Christian discovery "must
take effect in point of possession when the Indians' right of possession
ceases," and the Indians' right of possession and "sovereignty status with
regard to" that property is not automatically restored by an Indian nation
purchasing some of its ancestral lands from non-Indians. Non-Indian
governments may continue to tax those lands, and, presumably, regulate
activities on those lands, even when the lands have been restored to Indian
possession.

It must be pointed out that if it had been the federal government that had
purchased those lands, the lands would have immediately become exempt from
taxation, even if the lands had previously been taxed for the past 200
years. An Indian nation that has existed long prior to the United States,
however, does not receive the same protection, according to the Supreme
Court. It's the classic double standard reserved for the original Indian
nations of this continent, based on the Doctrine of Christian Discovery.

During arguments presented by Michael Smith on behalf of the Oneidas,
Justice Stephen Breyer asked a hypothetical question: "Suppose you don't
evict the people who are there, but it's 22 square miles in the center of
New York state. That's a lot of land. And maybe it's worth a trillion
dollars, I don't know. So does that mean that the Indian tribe would have
the right to, let's say, hundreds of billions of dollars, the value of that
property; and could it sue someone for it, the state of New York or the
federal government?"

Fear of Indians has been a constant factor in the non-Indian psyche, and
the Doctrine of Christian Discovery has been the basis of federal Indian
law since Marshall first invoked it in Johnson v. M'Intosh. Breyer's
fearful question and the court's reliance on the Doctrine of Christian
Discovery in the Sherrill ruling clearly demonstrate once again that this
core illegitimate concept in federal Indian law continues unabated.

Steven Newcomb is Indigenous Law Research Coordinator at Kumeyaay Community
College on the Sycuan Indian Reservation, co-founder and co-director of the
Indigenous Law Institute, and an award-winning columnist for Indian Country
Today.