ONEIDA NATION HOMELAND, N.Y. - As central New York tribes scramble to
preserve their sovereignty in the aftershock of the U.S. Supreme Court
Sherrill decision, the BIA is puzzling over a major, and possibly
unforeseen, consequence of the decision.
The 8 - 1 majority decision written by Justice Ruth Bader Ginsburg rejected
"unilateral" assertions of tribal sovereignty on tribally-reacquired land,
instead offering the Interior Department's process of taking "land into
trust." The Oneida Indian Nation, respondent in the case, announced April
12 it has put in an application for roughly 17,000 acres under the process,
and the Cayuga Indian Nation has indicated it will follow suit.
According to Mark Emery, spokesman for the Oneida Nation, "The Supreme
Court detailed a roadmap for providing certainty regarding the nation's
rights in its lands, and the nation is going to follow that roadmap."
But the BIA is discovering that these reservations would be its first trust
land in New York state.
The existing tribal reservations in New York - the Mohawk St. Regis
(Akwesasne) reservation, the three territories of the Seneca Nation of
Indians, the separate Tonawanda Seneca and Tuscarora lands, Onondaga Castle
south of Syracuse, and two state-recognized tribes on Long Island - are not
federal trust lands
Franklin Keel, director of the BIA's eastern region, wrote in a letter to
the Cayuga Nation: "The history of Indian lands in the state of New York is
quite unique ... [T]here are no Indian lands held in federal trust in the
state of New York."
Haudenosaunee (Iroquois) nations base their "aboriginal title" on a term
drawn from European feudal law; their lands are "allodial": owing title to
no other sovereign.
The St. Regis Mohawk Tribal Council has nonetheless called for its land
settlement to go forward. In an April 7 release, it said its circumstances
differed sharply from the Oneidas' in that its settlement established
"contiguous reservation lands with sizable Mohawk populations." The council
cited substantial local support for the settlement, including an April 4
resolution by the St. Lawrence County Legislature.
"Our land claim settlement is continuing to move forward and receive the
support of local communities," said Chief Barbara A. Lazore. "It's a fair
settlement and the ratification of the governor's Program Bill benefits all
Chief James W. Ransom denounced the Supreme Court's opinion as "unjust." He
said it "overturns fundamental bedrock principles of Indian law." He added,
however, that it "does not stop litigation ... and exposes all the parties
to years of uncertainty and legal costs."
None of this background appears in Ginsburg's decision, nor is there
evidence she was even aware of it. Her reliance on a process previously
unused in New York state could throw large quantities of sand into the
gears of a land settlement already grinding to a halt.
Five tribes, including three out-of-state claimants, negotiated land
settlements with New York state Gov. George Pataki, who has submitted an
omnibus bill to the state Legislature. One major deal that would double the
size of the St. Regis reservation appears to assume that the new land would
assume the same sovereign status as the existing reservation. But since the
current reservation is not federal trust land, it is unclear under the
Sherrill opinion how this result could be achieved.
There is even a remote possibility that the status of existing New York
reservations could be called into question. From the widespread gloating
over Ginsberg's opinion, there seems no shortage of anti-sovereignty
citizens' groups willing to make the challenge.
Ginsburg did note that earlier Supreme Court decisions upholding Oneida
land rights suits "recognized the Oneida's aboriginal title to their
ancient reservation land." But she rejected what she called the Oneida's
"unification theory" whereby its purchases of its aboriginal land on the
open market gave it both "fee title," its rights as a property owner, and
"aboriginal title," with national sovereignty.
Daniel French, a lawyer for the Cayuga Indian Nation, told the Syracuse
Post-Standard that his clients were leaning toward applying to put land
they own in Union Springs and Seneca Falls into trust. Until recently the
Cayugas were landless, although they are pursuing a suit for their
64,000-acre former reservation. Federal courts have held the land was
illegally conveyed in the late 18th and early 19th centuries and have
awarded nearly $250 million in damages.
An appeal of the award in the U.S. 2nd Circuit Court of Appeals was in
abeyance pending the Supreme Court decision in Sherrill.
In the meantime, the Seneca-Cayuga Nation of Oklahoma has avoided a
showdown with Cayuga County by announcing they will pay back taxes on a
229-acre farm they own in Aurelius and will drop plans to open an
electronic bingo hall. The back tax bill, including interest and penalties,
reportedly amounts to $86,000.