Oneida Nation dispossessed of right to
reclaim land or compensation
Circuit court says current land
occupants would be ‘disrupted’
By Gale Courey Toensing
Story Published: Aug 12, 2010
Story Updated:
Aug 12, 2010
NEW YORK – If an appeals court ruling
stands, Indian nations may not be able to reclaim their illegally
taken ancestral lands or receive compensation for their loss,
because it would be too disruptive to those who are currently
occupying and benefitting from the land.
A panel of the 2nd Circuit Court of Appeals ruled in a 2-1 decision
Aug. 10 that the
Oneida
Indian Nation has no “possessory right” to reclaim the 250,000
acres that were illegally taken by the state of New York in the 18th
and 19th centuries and sold for profit, nor does it have a
“non-possessory right” to claim restitution from the state for the
loss of its land. The nation estimated it is owed at least $500
million.
The appeals panel also said the state has sovereign immunity and
cannot be sued.
The Oneida Tribe of Indians of Wisconsin and the Oneida of the
Thames are also named as plaintiffs in the case.
Second Circuit Judges Joseph McLaughlin and Debra Ann Livingston
ruled in the majority. District Judge Nina Gershon wrote the
dissenting opinion.
“With this decision, the majority forecloses (the Oneida Nation)
from bringing any claims seeking any remedy for their treatment at
the hands of the state,” Gershon wrote.
She agreed that the Oneidas could not reclaim their land, but she
said the tribes had a right to be paid for their losses.
The appeals panel ruling upheld a federal court’s 2007 dismissal of
the Oneidas’ possessory claim and reversed the lower court’s ruling
that the nation could pursue a non-possessory claim for
compensation.
The current case was filed in 1974 but lay dormant for almost 25
years while the Oneidas pursued a “test case” seeking fair rental
value from Madison and Oneida counties for occupying a small portion
of their ancestral lands. The case reached the U.S. Supreme Court
twice.
The high court said the nation had a common law right to pursue the
action, but questioned whether “equitable considerations” – a set of
legal principles under which people cannot assert their legal rights
if it would be “unconscionable” for them to do so – “should limit
the relief available to the present day Oneida Indians.”
In the 1974 filing, the Oneida Nation claimed the 250,000 acres of
ancestral lands and relief going back more than 200 years to the
period between 1795 and 1846 when the lands were conveyed in
multiple transactions to the state of New York.
Sherrill cited the 1794 Treaty of Canandaigua, which acknowledges
the Oneidas’ 300,000-acre reservation and guarantees their “free use
and enjoyment” of the land, and it noted that New York state
continued to purchase Oneida land in violation of the
1790 Non-Intercourse Act, prohibiting the sale of tribal lands
without the permission of the federal government, but it used the
Doctrine of Laches to conclude that – treaty or no treaty – it
was just too late for the nation to claim the land.
The “standards of federal Indian law and federal equity practice
precluded the tribe from rekindling embers of sovereignty that long
ago grew cold,” the majority in Sherrill wrote.
Justice John Paul Stevens, who wrote the dissenting opinion, said
the majority’s action failed to fully protect the interests of
Indians and, therefore, breached its responsibilities to the Oneida
Nation under the
Indian Trust Doctrine.
The controversial Sherrill decision generated much comment and
debate among legal scholars. Sarah Krakoff, an associate professor
at Colorado University School of Law at the time, said the high
court’s “odd and cowardly” ruling avoided substantive legal
questions.
The ruling “obscures the historical record, and makes unwarranted
assumptions about the future. City of Sherrill appears in many ways
to revive the underlying assumptions of some federal and state
courts at mid-20th century – that tribal sovereignty is a waning
concept, a historical relic that has outlived its usefulness, and
has little, if any, legal force. As many commentators have noted,
this assumption is directly at odds with the federal policies of the
last three decades, which promote tribal independence and
self-determination. In applying equitable defenses to the Oneida
Indian Nation, the court is embracing an apologist stand toward the
many instances of immoral and illegal governmental actions against
the tribe, and ultimately suggesting that the passage of time
renders that history irrelevant, indeed even unmentionable,” Krakoff
wrote in the Tulsa Law Review in 2006.
The 2nd Circuit ruling echoes Sherrill’s assertion that time erases
the nation’s claims for justice regarding the “many instances of
immoral and illegal governmental action.”
“A tremendous expanse of time separates the events forming the
predicate of the ejectment and trespass-based claims and their
eventual assertion,” Judge Livingston wrote for the 2-1 majority.
“In that time, most of the Oneidas have moved elsewhere, the subject
lands have passed into the hands of a multitude of entities and
individuals, most of whom have no connection to the historical
injustice the Oneidas assert, and these parties have themselves both
bought and sold the lands, and also developed them to an enormous
extent.
“These developments have given rise to justified societal
expectations. ... under a scheme of ‘settled land ownership’ that
would be disrupted by an award pursuant to the Oneidas’ possessory
claims,” Livingstone wrote.
Oneida Indian Nation Spokesman Mark Emery issued the following
statement on the ruling: “This was a claim for money damages, and
the court decided that money damages are not available to compensate
the Oneidas for the illegal taking of their aboriginal lands.”
The ruling does not affect the status of nation lands, he said.
“The nation continues to pursue federal trust to protect these
lands, as indicated by the Supreme Court in the Sherrill case, and
this decision does not affect the trust land process. Nor does this
decision affect any of the earlier decisions from the federal
courts, including the same Court of Appeals, that Oneida reservation
remains intact and has not been disestablished, and that the
counties cannot foreclose on nation lands.”
The nation can seek a rehearing by an en banc panel of the 2nd
Circuit or file a petition for review with the U.S. Supreme Court.
Editor’s note: Indian Country Today is a division of Four Directions
Media, which is owned by Oneida Nation Enterprises, LLC.