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No checkered flag for Oneidas

ONEIDA NATION HOMELANDS, N.Y. - With all of today's slick computerized
video games getting so much attention, we sometimes forget that simpler
board games like checkers are still around. But the form of checkers most
recently played in Indian country by the U.S. Supreme Court has much more
serious implications than the kids' game with its dozen discs, alternating
colored squares, jumps and kings.

"Checkerboarding," a practice used to break up Indian reservations in the
late 19th century, has returned with a new twist likely to make it more
harmful to Indian governments and their sovereignty than ever before.

In 1887, President Grover Cleveland signed into law the General Allotment
Act, also known as the "Dawes Act." This legislation provided for the
allocation of 86 million acres of reservation land to individual Indians -
160-acre plots to heads of households, 80-acre tracts to single adults, and
40-acre plots to minors under age 18.

The idea was to remake Indians into farmers and simultaneously destroy the
common tribal practice of holding land communally. It mattered little that
most Indians at the time had no interest in agriculture or that the land
allotted to them was of poor quality. Land not allocated to Indians was
sold to non-Indians as "surplus" - the resultant alternation of Indian and
non-Indian lands gave rise to the checkerboard metaphor. Allotment finally
came to a halt with the Indian Reorganization Act of 1934.

In City of Sherrill v. Oneida Indian Nation of N.Y., the Supreme Court's
ruling can be boiled down to a basic hypocrisy. The practice of
checkerboarding Indian land was not only permissible but encouraged when
practiced by the federal government at the turn of the 20th century. Today,
however, when a recognized tribal government with a legitimate land claim
tries to reacquire land from willing sellers, the resultant checkerboard
pattern of Indian land ownership has somehow become detrimental to the
undefined "common good."

This supposed detrimentality is espoused in the majority (8 - 1) opinion,
penned by Justice Ruth Bader Ginsburg. She wrote, "A checkerboard of
alternating state and tribal jurisdiction in New York state - created
unilaterally at [the Oneida Nation]'s behest - would 'seriously burden the
administration of state and local governments' and would adversely affect
landowners neighboring the tribal patches." This statement has no basis in
fact.

First of all, the Oneida Nation did not create this situation
"unilaterally." The nation is attempting to reassert its sovereignty over
land illegally taken from it by New York state, with the acquiescence of
the federal government, 200 years ago. The Supreme Court itself recognized
the legitimacy of the Oneida Nation's claim to its original reservation in
1985.

Secondly, Ginsburg never explained exactly how checkerboard land ownership
by the Oneida Nation is in fact injurious to non-Indian neighbors. The
ideas of "disruption" and "adverse affects" are repeated in various forms
throughout the decision, but nowhere does the majority explain how or why
Oneida tribal sovereignty over its own court-recognized reservation is in
fact "disruptive" to lands and peoples outside its boundaries. Simply
repeating something over and over again does not make it true.

Elsewhere we examine the nation's economic and philanthropic contributions
to the region - activities indicating that not only does the nation have a
vested interest in the economic health of its homeland, but also that it
has gone out of its way to assist its non-Indian neighbors. Yet the court
inexplicably believes that if the Oneidas were to "assert sovereign control
and remove these parcels from the local tax rolls, little would prevent the
tribe from initiating a new generation of litigation to free the parcels
from local zoning or other regulatory controls that protect all landowners
in the area."

As the court itself noted, the Oneida Nation's land holdings, some 17,000
acres in Madison and Oneida counties, represent "less than 1.5 percent of
the counties' total area." This statement alone refutes the idea that
Oneida sovereignty would somehow "disrupt" local governance. Not only does
the nation boast an accredited police force, it has adopted a regulatory
regime that meets or exceeds all applicable local, state and federal
ordinances.

Yes, the nation already has its own regulatory controls, and adjacent
landowners need no "protection" from a tribal government that has amply
demonstrated its willingness and ability to be a good neighbor.

Do Ginsburg and her majority colleagues really mean to imply that the
Oneida Nation, despite maintaining a functioning government that is older
by centuries than that of the United States, New York state or any local
municipality, is incapable of governing and regulating itself? Such notions
of cultural superiority are abhorrent.

The March 29 ruling appears to condone a double standard. Ginsburg wrote,
"This court has recognized the impracticability of returning to Indian
control land that generations earlier passed into numerous private hands."
On the one hand, the court claims that checkerboarding is disruptive and
cannot be allowed. On the other, it states that tribes whose land was
stolen from them (through checkerboarding and other means) cannot regain
them because they've been checker-boarded into "numerous private hands."
Had author Joseph Heller been able to work this situation into the plot of
his classic 1955 novel "Catch-22," there's no doubt he would have.

The only voice of reason in the Sherrill decision comes in Justice John
Paul Stevens' dissenting opinion, who calls the majority opinion "a novel
holding" that "venture[s] into legal territory that belongs to Congress."
Justice Stevens argues two "bedrock" principles of Indian law - that only
Congress has the authority to reduce or disestablish a tribal reservation
and that recognized tribes enjoy immunity from local and state taxation of
reservation land unless that immunity is specifically taken away by
Congress.

Stevens makes another important point. He calls it "perverse" to rule that
the passage of two centuries does not preclude the nation from gaining
damages to remedy "ancient wrongs," while simultaneously stripping the
nation of its immunity from local and state taxation because too much time
had passed since the Oneida last exercised sovereignty over its
reservation. The dissenting justice observed that the land has been
reacquired peacefully and lawfully in a manner that respected the interests
of innocent landowners.

"To now deny the tribe its right to tax immunity - at once the most
fundamental of tribal rights and the least disruptive to other sovereigns -
is not only inequitable, but also irreconcilable with the principle that
only Congress may abrogate or extinguish tribal sovereignty," Stevens
wrote, adding that it is "pellucidly clear" that under "settled law" the
city of Sherrill may not tax reservation land.

The court's holding that the Oneida Nation's reassertion of sovereignty
over its reacquired reservation lands is automatically "disruptive" to
local governments is absurd. One need only look at the Cahuilla Indians in
southern California for examples of how checker-boarded jurisdictions can
work. The nine bands of the Cahuilla have nine separate reservations
scattered throughout the Coachella Valley; as a result of the Dawes Act,
most of these remain checker-boarded to this day.

For example, under Dawes the Agua Caliente Band was allotted 32,000 acres
of noncontiguous land, comprised of the even-numbered sections resulting
from a land survey. Of this land, 10,700 acres lies within the city of Palm
Springs while the rest is spread out throughout adjacent desert and
mountainous land.

By all accounts, the band and the surrounding municipal governments enjoy
positive working relationships. There is no "disruption," no "serious
burden [on] the administration of state and local governments," as the
Supreme Court would like us to believe.

This isn't to say that tribal and local governments in the Coachella Valley
may not disagree from time to time. But when disputes arise they
communicate, they respect each other's sovereignty and they work within a
government-to-government framework to get problems solved to benefit all of
their constituents.

It is unfortunate that the atmosphere in central New York has become so
poisoned with inflammatory anti-Indian rhetoric that similar
government-to-government relationships, based upon mutual respect, have not
prospered. Furthermore, it is deplorable that a majority of the Supreme
Court decided to usurp Congressional authority and stick a knife straight
into the heart of justice.