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Sherrill hearing fails to answer why Supreme Court took case

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WASHINGTON - After watching an hour of give and take with the Justices of
the U.S. Supreme Court, close observers of the City of Sherrill, New York
v. Oneida Indian Nation of New York case still weren't sure why the court
agreed to take up the case in the first place, and they were beginning to
suspect the justices themselves weren't sure either.

The case centered on the Oneida's claim that land it had repurchased within
the boundaries of its original 270,000-acre treaty reservation in Upstate
New York reverted to tribal jurisdiction. Hence the city of Sherrill had no
right to levy property taxes on them. The Oneidas prevailed in U.S.
District and Circuit Courts against Sherrill's attempt to repossess several
Oneida-owned parcels for unpaid taxes.

The most pungent questions in the Jan. 11 oral argument came from Justice
Antonin Scalia, who is no fan of tribal sovereignty. "What you're asking
this court do is to sanction a very odd checkerboard system of jurisdiction
in the middle of New York state," he said to attorney Michael Smith of the
Washington firm of Zuckerman and Spaeder, arguing for the Oneidas. "This is
just a terrible situation for governments."

Scalia failed to note that the origin of the checkerboard, a frequent
pattern on Indian reservations, was the expropriation by the dominant
culture, often illegally, of land originally pledged to a tribe. The
Oneidas are pursuing a separate land claim for 270,000 acres taken
illegally by New York state in the early 19th century, and the Supreme
Court itself in the mid 1980s twice upheld the Nation's right to bring the
suit. These legal precedents weighed heavily with the lower federal courts
in granting the Oneidas an injunction against Sherrill's tax actions.

The question remained what legal theory could support Scalia's concern for
the administrative convenience of local governments. Neighbors of the
Oneidas were happy to offer several drastic answers, including the claim
that the Oneidas had ceased to be a tribe in the 19th century thanks to
state and local efforts to drive them away from their homeland. Even more
ominously, the court could severely limit the definition of Indian country
or the scope of tribal sovereignty.

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But this approach would repudiate not only the court's previous two Oneida
decisions but also last year's Lara case, a significant affirmation of
sovereignty. In spite of the 7 - 2 majority in Lara, the court covered the
lot, with three concurring opinions and a dissent from Justice David
Souter, joined by Scalia. The dissent stated ominously "confusion, I fear,
will be the legacy of today's decision, for our failure to stand by what we
have previously said reveals that our conceptualizations of sovereignty and
dependent sovereignty are largely rhetorical." The court's surprising
decision to take up the Sherrill appeal, a 100 to one shot strongly opposed
by the U.S. Solicitor General, raised the possibility that at least some
justices wanted another stab at clearing up the "confusion."

But the tenor of other questions suggested that most of the court shied
away from a drastic decision. A common theme was whether the Oneidas had
waited too long to press their claim. In a very technical way, the earlier
Oneida decisions had left open the question of laches, the doctrine that a
legal claim could lapse if not pursued in a timely manner. But the doctrine
includes the concern that long delay might make it harder for the other
side to defend against the suit, which is not likely to be the case for
someone who has illegal possession of Indian land, so it hasn't stopped the
land claims suits of the last two decades. In fact a pro-Oneida observer
saw the time question as a good sign, since it implied that otherwise the
basic legal case was sound.

One of the maxims of court watching, however, is that you can't predict
anything from the questions in the oral argument. Souter, the dissenter in
Lara, seemed to defend the Oneida's position, but it can't be said what he,
or even Scalia, would ultimately decide.

The biggest question in the high-ceiling chamber, in fact, was the empty
chair in the elevated tier where the justices sit. Chief Justice William
Rehnquist was absent, still suffering complications from thyroid cancer.
Washington is speculating that at the age of 80, his days on the court are
numbered. The most important decision of all could be his replacement. One
scenario advanced by New York Times Columnist William Safire is that
President Bush would elevate Scalia to chief justice and attempt to dampen
opposition by promising a more moderate appointment to the empty seat.

Such a decision could be even more momentous for Indian country than the
outcome of the Sherrill case, important as that might be.