In the midst of the land claims fight with states, the litigation posture
has not always proven the most rewarding. The result of too much conflict
and litigation is a continual quick-response tendency to aggression that
can permeate the atmospherics of mutually conflictive circles. Land claims
that drag on forever tend to traumatize the neighboring non-Native
homeowners, too many of whom end up with serious conflictive attitudes - if
not hatred - toward the Indian cause.
In New York state, neither state nor local counties and townships are
thinking straight in this loggerhead moment, given the years of conflict
and the constant negativity on all sides which now permeates regional
thought. In City of Sherrill v. Oneida Indian Nation of N.Y., the U.S.
Supreme Court went way out of its way to reach for the case and delivered a
decision that denies promised justice and imposes, once again, the federal
trust responsibility model now favored for taking lands into tribal
Thus the Oneida Indian Nation of New York is challenged to defend its major
enterprises and organizational structure - the results of its commitment to
self-determination and self-government - with a flank seriously breached by
a high court decision that appears to pull the rug of freedom from under
recently reacquired Oneida reservation lands.
In many ways the court's decision in Sherrill was an atavism, a throwback
to the earliest Eurocentric rationalizations for stealing Indian land and
subjugating Indian people. Legally, the case was strong enough to have
prevailed in all the lower courts. Strategically, and in point of fact,
however, given the overwhelming decision against the Indian cause, the
Oneida Nation and other tribes in similar positions of seeking the return
of stolen lands into sovereign Indian title now face a serious negative
precedent. Without "Indian country" designation, the nation's enterprises
sit on disputed lands.
In making its decision, the court referenced the land into trust process as
the means by which tribes can petition to have lands returned to them under
their own governance. Shortly after the fateful decision, when a BIA realty
officer submitted 331 deeds to an Indian Affairs office in Oklahoma for
recording, the 17,000-plus acres owned by the nation in Oneida and Madison
counties received the designation of "restricted status." But this
designation, it appears, will not forestall the reassertion of jurisdiction
by local towns and counties.
Nevertheless, the designation is an indication that the land issue remains
one that needs to be resolved, particularly since the court did not refute
its earlier judgment that gave the Oneida people a victorious land claim.
Local and state politicians and, of course, the New York governor's office
have all quickly put the deepest possible pressure on the Oneida Nation, as
they interpret that its main enterprise, the Turning Stone Resort and
Casino, perches now on land no longer upheld as being within Indian
jurisdiction. Counties threaten foreclosure if not paid "their" taxes; and
the governor is squeezing as much life as possible from the Oneida
governing council, which faces one of those tough strategic decisions
destined to define the fate of generations.
Like all nations, and perhaps more than most, the Oneida Nation has parried
widely in political and economic contests. It is a relatively small nation
of Indian people, with small pockets of population within and outside the
primary counties impacted by its substantial land claim.
While internal disputes and ensuing court cases have dominated the news on
the Oneida Nation, its early legal position that maintained the possible
inclusion of neighboring homeowners - some 20,000 of them - in the land
claim lawsuit, proved a legitimate legal land claim can take a misguided
political turn. Its cause was not advanced when the Oneidas of Wisconsin
actually did sue several private landowners.
This untenable strategy was dropped, but not before giving new life to a
heretofore tiny, anti-Indian "patriot" group which soon grew to become a
vocal force in the central New York media. The public agitation of
politicians, coupled with the public barbs and lawsuits of internal nation
conflicts, have been fanned by local dailies including the regional
Syracuse Post Standard.
It is this consistent heat that the high court cited and assumed was
potential "social disruption" in its denial of Oneida sovereignty over
Oneida lands. For tribal leaders everywhere, this should serve as a case
study of how public perception, even when factually wrong, can influence
and forge public policy.
It is a travesty of justice to deny an Indian nation government its right
to purchase its ancestral lands back into tribal ownership. We believe
history will come to judge it so and the Sherrill decision will be analyzed
for its ill-conceived reasoning and for how the court revealed itself with
Perhaps this is the most important lesson: this case is about Oneida
sovereignty over Oneida lands. As such, it is about any tribal nation's
right to reassert its sovereignty over lands taken illegally.
The high court's "series of ad hoc rationalizations," as characterized by
Associate Editor Jim Adams in "Supreme Court leaves ray of hope after
Sherrill disaster": "bought into the lurid claims of town and county
politicians, and of local anti-Indian groups, that chaos would result if
tribes could reassert their sovereignty over lands once stolen from them
but now repurchased with the profits from a casino's cash flow." The
Sherrill decision was not about the law, but a reaction to the histrionics
of local politicians who convinced the court, with no evidence, that Indian
jurisdiction over even a minute portion of their lands would result in
Justice Ruth Bader Ginsburg wrote a throwback to the worst days of
double-dealing, starting with her first footnote citing the Doctrine of
[Christian] Discovery. She mentioned Andrew Jackson's "ethnic cleansing"
without condemnation. Her legal arguments consisted of a series of excuses
to avoid acting on the principles so clearly laid out by the lower courts
and the U.S. Solicitor General.
She invoked an over-simplified version of "laches," the doctrine that a
long delay forestalls bringing a lawsuit, if the delay makes it difficult
for the sued party to defend itself; this point struck some commentators as
mean-spirited, since the court itself historically had put up barriers to
Indian land suits. It wasn't until 1974, in a case started by the Oneida in
1969, that the Supreme Court ruled that federal courts should take
jurisdiction. And it wasn't until the late '90s that the Oneidas (and other
tribes) had the means to repurchase the ancestral land at the heart of the
Even more insulting was her doctrine of "impossibility," based on a case
from 1892. Indians couldn't regain their lands, in that case parts of
Omaha, because that which was once wild had been plotted out and built up
by European settlers. But this case threatens developments, made by Indians
at a cost exceeding $340 million, that promised to bring up to 5,000 jobs
by this mid-year to a long-depressed region. The court doesn't admit the
possibility of Indian success and white failure.
Where is the decision in equity that a premature tax foreclosure,
destroying not only this development but threatening the bond ratings for
all Indian investment, would have impossible practical consequence? We
would like to see how Bader and her seven colleagues would rule on a motion
for an injunction against counties and towns until the land into trust
process could be completed.
Of course there is a Catch-22 here, since the BIA - reverting to its worst
Indian agent tradition - has ruled that it won't act on land into trust
applications until tax liens are cleared. In fairness to Ginsburg, we
should note that on this case she is merely the front person for an ugly
season in Indian affairs.
Retention of tribal nation governance in New York state has never been
easy. The state has a long history of assault upon the integrity of the
Haudenosaunee and other Native lands; and on this account the Oneida
leadership, which had lost 270,000 original acres, sought to buy back some
reasonable portion of its land. In this context, several intersecting and
well-programmed campaigns by the state and anti-Indian groups based in the
region added intense public perception campaigns to the mix of influence
against the tribe's positions.
This is the realm where public policy, even in the form of Supreme Court
decisions, is and can be influenced by public perception, media coverage
and the willingness of states to attack tribal rights. As the high court
put it in 1886 (U.S. v. Kagama): "Because of the local ill feeling, the
people of the states where they are found are often their deadliest
enemies." And: "[The tribes] owe no allegiance to the states, and receive
from them no protection." Failing to reach a positive deal with the
governor, the nation was positioned by the state in favor of negotiated
deals with the Wisconsin Oneidas and Stockbridge Munsee, whose land claim
liabilities Gov. George Pataki also wants cleared from his decks.
As suggested by the high court, the Oneida Nation is pursuing the placement
of its repurchased lands into federal trust land status. The best of
outcomes here is at the prerogative of officials at the BIA and at the
Interior Department, who must study now the potential disruption at the
other end of the spectrum: If a legitimate Native nation and its relations,
with huge forward motion and contractual obligations, were to be
disenfranchised and denied status to take land into trust. The
administration and Interior administrators have an opportunity to continue
to strengthen tribal sovereignty through the federally prescribed methods
of land into trust approvals. Economic stimulus for central New York
follows this course.
As the high court prescribed from the gut against legitimate land
recoveries, the wonder remains how the conflictive climate, whipped up by
one or two organizations, picked up, promoted and widely broadcast in the
media, appeared and became larger than truth itself. It is important to
ponder and analyze how it may have influenced the negative high court
decision based on avoiding a "disruptive remedy" to deny a just and
reasonable resolution to an ongoing land claim. This is a topic that
deserves continuous study and analysis.
From the earliest moments of the American republic, it has been contingent
on the federal government to resolve and protect just procedure in
conflicts between the tribes and the states. It is now important for the
federal government to secure some measure of justice for the Oneida people
by advancing the land into trust process over lands repurchased by the
Oneidas within their historic land claim. Neighborly disposition and
mutually beneficial strategies with local and state governments is always
an excellent goal for tribal leaders.