Will the Indian dream of the land endure?

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Oneida case heard at Supreme Court

Once again last week, a major case before the U.S. Supreme Court, City of
Sherrill, New York v. Oneida Indian Nation of New York, on the nature and
status of Indian sovereign lands, caused intense speculation and
anticipation among many observers. The high court heard the case on Jan.
11. It is expected to decide the issue by late June.

The implications are quite large for the strategy of re-establishing Indian
sovereign land bases from which the tribes can begin the arduous process of
economic, social and cultural reconstruction. While all Native nations have
unique political and economic circumstances, the movement by the tribes to
rebuild their communities requires the consolidation of their proper and
historical territorial lands, upon which the dream of developing workable
economies that enable nations to thrive can be realized.

Reduced from their aboriginal 6 million acres in Central New York, the
Oneida were left with only a 32-acre reservation in Madison County when
they filed their land claim in 1977. The U.S. Supreme Court decided 5 - 4
that they had a right to the land, ultimately comprising some 270,000
acres. The Oneida and other Haudenosaunee tribal land claims are based on
New York state's violation of the 1790 Nonintercourse Act, an early federal
law which prohibited all purchases of Indian land without federal approval.

As it rebuilds its political and financial base, the Oneida Nation of New
York has exercised its sovereignty to create businesses and to purchase
back less than 10 percent of its historical lands, to which it never
conceded Indian title, and which are in fact guaranteed by treaty - which
is to say the supreme law of the land. The Oneida Nation of New York has
purchased now some 16,000 acres of its own land back into Nation ownership,
placing the mantle of its sovereign authority over it, and thus claiming
the property within the realm of its own taxation powers. Expectedly, local
townships and counties do not like the idea; these have endeavored to force
their property tax on the Nation, which refused to pay it. Foreclosure
procedures followed by the city of Sherrill even assumed to sell the
"foreclosed" Oneida Nation properties back to the city - but all was to no
avail as both the Federal District Court and the United States Court of
Appeals for the 2nd Circuit - two lower courts - affirmed Oneida sovereign
property rights over these lands that were illegally taken by the state.
These early precedents on the Sherrill case have been cited by several
Indian nations, and directly by the Cayuga Nation of New York and the
Seneca-Cayuga Tribe of Oklahoma to purchase and initiate businesses on
tribal properties within their own land claim areas within New York state.

Supported by a wide array of forces antagonistic to Indian sovereignty over
Indian-titled lands, the small city of Sherrill continued to sue for the
right to tax the Oneida lands, which it has considered to be in its
dominion. Most people thought the case settled there, even as Sherrill
refused to accept the previous two court defeats and took its case to the
Supreme Court, claiming the Oneida Nation owes the city about $40,000 in
taxes. Upstate Citizens for Equality, an anti-Indian group opposed to all
Indian sovereignty, has organized unrelentingly against the Oneida Nation's
economic buildup and political presence in Central New York. Among those
who added amicus briefs to the case are a roster of other municipalities
affected by tribal governments in New York and Connecticut. The National
Congress of American Indians, encompassing more than 200 tribes, endorses
the Oneida case.

The high court surprised everyone when it reached for the case against the
advice of even the U.S. Solicitor General, the highest government attorney
before it. Why the Supreme Court chose to take up this controversial and -
at the home level - quite heated case is one reason for the high
speculation. Following argumentation and based on the finer points of
Indian law, the Court may now also be wondering why it took the case in the
first place.

Nevertheless, Sherrill v. Oneida has large implications of the status of
Indian sovereign lands across the United States. The court may want to
strictly define, once and for all, the land holding and sovereign
jurisdictional rights of American Indian tribes. It is a difficult,
inevitable case as tribes get stronger economically and attempt to rebuild
their homelands by re-acquiring lands that were illegally taken.

The Oneida argue that cities and state cannot revoke tribes' land ownership
and the inherent sovereign powers of governance associated with that
original legal ownership, and they are backed by considerable case law -
including Supreme Court cases. They are supported by a land-based history
of holding property assets as aboriginal owner and being robbed and
dispossessed of those assets "by any means necessary" in illegal ways by
New York state and its citizens, as affirmed by earlier Supreme Court
rulings. As a sovereign Indian nation, they refuse to pay a tax bill to
another government.

The city of Sherrill argues the case as a "nightmare" for governments,
raising the specter of "chaos" in its backyard. Parsing the details of the
relevant treaties, they point to supposed gaps in the Oneida existence as a
tribe and to an alleged lack of tribal presence on the land in question.
Sherrill's Manhattan attorney Ira S. Sacks argues that the land can't be
considered Indian territory because the title was extinguished by federal
treaty. He cites the corrupt 1838 Treaty of Buffalo Creek, which forced
removal of tribes westward, as proof of Oneida loss of connection to their
lands. In a friend-of-the-court brief in support of Sherrill's case,
Madison and Oneida counties argue that the federal law (1790 Nonintercourse
Act) prohibiting all purchases of Indian land without federal approval does
not apply in the Oneida case.

While these appear the lesser arguments, no one can predict how the Supreme
Court will rule. In fact, during the hearing, the notion of "chaos" of
Native nations re-acquiring properties into tribal jurisdiction was raised.

Justice Antonin Scalia's comments were particularly identified by the
anti-Indian forces as he expressed concern about the "regulatory chaos"
that would ensue if the Oneida Nation prevails: "What you're asking the
court to do is sanction a very odd checkerboard system of jurisdiction ...
It would just create a chaotic situation in New York state if we say you
have jurisdiction over any piece of land you buy."

However, the reality is that checkerboarded jurisdiction is a fact of life
for many if not most American Indian governments throughout the country,
mostly because non-Indian individuals encroached on tribal lands and these
illegal encroachments were made legitimate over time. Now, those same
petitioning groups are the backbone of the movement to break down Indian
jurisdictions. As tribes endeavor to regain such lands to tribal
governance, suddenly "chaos" is the main specter they raise. But this
constitutes a distortion, if not outright revision of history. How about
the source of this case's problem, namely the "chaos" of a fractured Indian
polity that occurred when Oneida lands and resources were stolen and which
resulted in the wanton destruction of tribal lives? What of the effort to
restore, rebuild and heal this thoroughly documented and Supreme
Court-confirmed travesty?

On the other hand, when a Sherrill attorney argued against the continuity
of title by Oneida, Justice Stephen Breyer cited prior Indian case law,
which asserts that "the whole title doesn't just disappear simply with the
passage of time."

Ah, neither does the Indian "dream of the land" die. Neither do the
identity in the land and the roots that persist in the living memory.
Neither does the constant impulse to persist and achieve the restoration of
our cultures and values and properties and the material wellbeing of our
future generations.

At Oneida, as elsewhere in Indian country, the ongoing governance process
of respectfully applying its sovereignty continues. After a conflictive,
bumpy start with its neighbors and the region, the Oneida Nation and its
enterprises (including Four Directions Media, Inc., the parent corporation
of this newspaper) generally follow collaborative gestures and solutions.
For example, while the nation doesn't pay local property, school or sales
taxes, it voluntarily makes substantial contributions to local
municipalities and school districts. The Nation enterprises also employ
over 4,000 employees who enjoy substantial benefits and pay voluminous
state taxes on their salaries and property taxes on their new homes. The
Oneida Nation enterprises are the primary economic rotor in their region of
Central New York, infusing into the region several million tourists and
travelers to its Turning Stone Resort and Casino, five golf courses, four
hotels, three marinas and two campgrounds. As the Oneida Nation, like so
many rebuilding Native nations, largely reinvests its revenues in its
region and in local business creation, the Nation provides an identifiable
counterweight to the decimation of job "out-sourcing" by other
corporations. It is simply disingenuous for local towns and counties to
suggest, imply and argue, that the emergence of thriving tribal nations
somehow diminishes their own economic standings. It is equally disingenuous
to suggest that chaos is the result of sharply defined laws that identify
land ownership and delineate jurisdiction over those lands accordingly (the
appropriate converse application of the Supreme Court's ruling in the
Navajo case Atkinson Trading v. Shirley).

Sherrill attorneys were elated at the justices questioning beyond the "tax"
issue, to the perceived social problems inherent in their potential
decision. ("It's about a gas station blowing up because they don't comply
with fire codes," Sherrill attorney Sacks cried to the court). But fear of
"chaos" is one thing, as is the practice of making policy based on fear of
any kind (the Oneida Nation's fire codes and other safety codes meet but
more often exceed those of its surrounding towns and cities). Doing justice
- this is quite another thing. In fact, one would hope, it would be the
only true matter before this court, as it deliberates on the most serious
of matters for Indian country: Will the dream of the land for Indian
peoples, the original and rightful owners, be realized or dashed in this
great American nation?