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Supreme Court leaves ray of hope after Sherrill disaster

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ONEIDA NATION HOMELANDS, N.Y. - The U.S. Supreme Court blew it in 1857,

The infamous decision of that year centered on a slave, Dred Scott, who had
been taken to free territory and then sold back into a slave state. Scott
sued for his freedom, but the court ruled that as a slave and a member of a
race the Constitution writers considered "inferior," he had no rights of
citizenship to go to federal court. He must remain a slave.

Indian country's equivalent of the Dred Scott v. Sanford case is the
court's March 29 decision in City of Sherrill v. Oneida Indian Nation of
N.Y. The 8 - 1 ruling, written by Justice Ruth Bader Ginsburg, struck at
the heart of one tribe's economic and political revival. The Oneida Indian
Nation of New York (OIN) could not "unilaterally" re-establish sovereignty
over former reservation lands that it repurchased on the free market.

The ruling dealt a blow to the Oneida's efforts to rebuild its nation.
Following a June 10 BIA letter saying most Oneida-owned lands were taxable
and subject to foreclosure, Oneida County officials sent out final notices
on 59 parcels. They said that if the OIN failed to pay the $5 million in
back taxes, they would put the lands up for auction in September.

But all of Indian country is on the line.

The decision, said one leading practitioner of Indian law, was based not on
legal principle or on the facts of the case but on fear. The justices
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 court tried to forestall this
assertion of self-determination and return the tribes to a form of economic

But Sherrill showed one major difference from Dred Scott. Where Chief
Justice Roger Taney in 1857 argued at length from legal principle, Ginsburg
gave a series of ad hoc rationalizations. Comments on her reasoning range
from the rude to the diplomatic statement of a BIA official, "It seemed
like a decision in equity."

The very fact that Sherrill was not a principled decision might have
insulated the principle of sovereignty from permanent damage. The
anti-Indian groups which have been openly rejoicing over the ruling might
find that their cause for celebration is more limited than they think.

"Even though it is an incredibly crappy opinion," said Douglas J.
Luckerman, a Massachusetts lawyer specializing in New England sovereignty
cases, "there is a little kernel of hope."

The kernel, he said, came at the end of Ginsburg's opinion, when she
offered the federal land into trust process as "the proper avenue for the
OIN to re-establish sovereign authority over territory last held by the
Oneidas 200 years ago." This gesture was lukewarm comfort to the
Haudenosaunee (Iroquois Confederacy) nations within New York, who hold
their reservations through original title, not as federal trust lands. But
it could be tremendously helpful to other tribes fighting to re-establish

Inadvertently or not, said Luckerman, Ginsburg held that sovereignty could
be restored over territory, even after a lapse of 200 years, if it were
done through the land into trust procedure. This is a major boon for New
England tribes. In Rhode Island, a fight over the status of new
Narragansett trust land has led Gov. Donald Carcieri to sue Secretary of
Interior Gale Norton, claiming that her trust power is unconstitutional.

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A three-judge panel of the U.S. 1st Circuit Court of Appeals recently
demolished the case, but the Circuit Court is currently considering whether
to rehear it before its full panoply of judges.

The rest of Ginsburg's opinion might be of primary interest to partisans of
Critical Legal Studies. This controversial academic movement charges that
under a veneer of logic and concern for justice, legal principles serve
mainly to oppress those outside of the dominant culture. Ginsburg's
argument in Sherrill should make her the pin-up girl for this movement.

Although the Oneida's assertion of sovereignty was endorsed by the U.S.
District and Circuit courts and the U.S. Solicitor General, Ginsburg and
the seven other justices on her opinion rejected it because it was
inconvenient for the non-Indian settlers in the region.

(The decision affirmed the Oneidas' right to seek redress in federal court
for the loss of their lands, upholding Supreme Court rulings from 1974 and
1985. This case is still pending, and the parties have been engaged in
tangled negotiations for years over an out-of-court settlement.)

The court accepted the claim that the "unilateral" sovereignty would bring
"administrative chaos," destroy the tax base and even forestall "local
zoning and other regulatory controls." It ignored protests from tribes
across the nation in friend-of-the-court briefs that other regions had
learned to deal smoothly with "checkerboarding." Violating a cardinal
Supreme Court principle, Ginsburg was stampeded into ruling on
hypotheticals rather than on facts presented in trial.

Her double standard flared into view when she invoked what she called the
"impossibility" standard. Quoting an 1892 case involving Omaha, she
expressed "pragmatic concerns" about restoring Indian control over land
that had been bought and developed by private settlers. "[T]hat which was
wild land thirty years ago is now intersected by streets, subdivided into
lots" and so forth. She ignored the fact that it is the OIN that made
improvements on the land in question, including a $340 million investment
in the Turning Stone Resort and Casino.

As a result of her ruling, vengeful local and state officials are
threatening to shutter these improvements and the 4,200 jobs they have
created (largely for non-Indians). The court is ignoring and threatening to
reverse the recent success of Indian sovereignty, which has brought
prosperity to regions the dominant economy left stagnant.

The aftermath of the ruling underscores the court's one-sided concern for
"disruptive practical consequences." They are bad if they pose a
hypothetical threat to non-Indian interests, but not if they create
immediate damage to Indian investments. The threat of tax foreclosures and
public auctions of Indian land has a long history in New York state. After
fraudulent treaties with drunken chiefs passed out of fashion, local
officials tried to seize tribal land by imposing taxes the Indians couldn't
pay and then foreclosing on the delinquencies.

In the past this tactic shocked the conscience of the federal courts. The
Supreme Court in 1867 firmly repulsed antebellum New York state efforts to
seize Seneca land. The U.S. v. Boylan case in 1920 returned an Oneida
family to land from which Oneida County officials had evicted them, laying
the basis for the original 32-acre reservation.

The Sherrill case crystallizes the concern of many in Indian country that
an anti-Indian bias controls the court. When in the absence of a federal
government interest, tribal concerns conflict with local and state
governments, the court will side with state and local officials.

Perhaps the history of the Dred Scott case offers a grim consolation. When
the Taney court came down so heavily for the slave-holding interest, it
galvanized the conscience of the rest of the nation. The North rejected the
moral authority of the court, Lincoln came into office and within five
years slavery was dead.

The ultimate ray of hope in Sherrill is that it will shock Indian country
into an adamant defense of sovereignty, in spite of the many pressures to
whittle it down.