City of Sherrill v. Oneida Indian Nation

Issues 

Basic Governing Principles as Noted by the Second Circuit

The Second Circuit cited three basic principles that govern the issues at hand. The first is the Oneida's right of occupancy on Indian country, which "may extend from generation to generation, and will cease only by dissolution of the tribe, or their consent to sell to the party possessed of the right of pre-emption." Oneida Indian Nation, 337 F.3d. at 152 (citing In re New York Indians, 72 U.S. 761, 771 (1866)). The second, codified in the Non-Intercourse Act, represents federal preeminence over the disposition of land in Indian country, since "Congress alone has the right to say when the [United States'] guardianship over the Indians may cease." Id. (citing United States v. Boylan, 265 F. 165, 171 (2d. Cir. 1920)). The sale or conveyance of reservation land can only be made with congressional sanction, that is, "by treaty or convention entered into pursuant to the Constitution." Id. (citing 25 U.S.C. § 177 (2000)). The third principle is federal preemption, which prohibits states from imposing property taxes upon Indian reservation land without congressional approval. Id. (citing In re New York Indians, 72 U.S. at 771).

Oral argument: 
January 11, 2005

In 1997 and 1998, the Oneidas re-purchased title to parcels of aboriginal land within Sherrill, New York, in open market transactions. Sherrill subsequently assessed property taxes, which the Oneidas ignored, asserting that the properties are contained within the Oneida Indian Reservation and therefore are considered to be "Indian Country", which is nontaxable by state municipalities. Sherrill sent the Oneidas notices of tax delinquency, held a tax sale where Sherrill repurchased the parcels, then initiated eviction proceedings. The U.S. District Court for the Northern District of New York found in favor of the Oneidas. On appeal, the Second Circuit affirmed the District Court and also found that the 1838 Treaty of Buffalo Creek, 7 Stat. 550 did not require the Oneidas to abandon their lands in the state of New York in exchange for land in Kansas, and further, that a reservation continues to exist even if a tribe ceases to exist and is protected under the Non-Intercourse Act. The Supreme Court must now assess the Second Circuit Court's interpretations.

This case consists of four separate questions, which ultimately address whether properties reacquired by the Oneida Indian Nation of New York are subject to taxation by the City of Sherrill, New York and Madison County, New York.

1. Whether alleged reservation land is Indian Country pursuant to 18 U.S.C. § 1151 and this Court's decision in Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520 (1998) where the land was neither set aside by the federal government nor superintended by the federal government?

2. Whether alleged reservation land was set aside by the federal government for purposes of Indian Country analysis under 18 U.S.C. § 1151 and Native Village of Venetie Tribal Gov't where the alleged reservation was established by the State of New York in the 1788 Treaty of Fort Schuyler, and not by any federal treaty, action or enactment?

3. Whether the 1838 Treaty of Buffalo Creek, which required the New York Oneidas to permanently abandon their lands in New York, resulted in the disestablishment of the Oneida's alleged New York reservation?

4. Whether alleged reservation land may (i) remain Indian Country or (ii) be subject to the protections of the Indian Trade and Intercourse Act, or Non-Intercourse Act, 25 U.S.C. § 177, if the tribe claiming reservation status and Non-Intercourse Act protection ceases to exist?

Questions as Framed for the Court by the Parties 

1. Whether alleged reservation land is Indian Country pursuant to 18 U.S.C. § 1151 and this Court's decision in Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520 (1998) where the land was neither set aside by the federal government nor superintended by the federal government?

2. Whether alleged reservation land was set aside by the federal government for purposes of Indian Country analysis under 18 U.S.C. § 1151 and Native Village of Venetie Tribal Gov't where the alleged reservation was established by the State of New York in the 1788 Treaty of Fort Schuyler, and not by any federal treaty, action or enactment?

3. Whether the 1838 Treaty of Buffalo Creek, which required the New York Oneidas to permanently abandon their lands in New York, resulted in the disestablishment of the Oneida's alleged New York reservation?

4. Whether alleged reservation land may (i) remain Indian Country or (ii) be subject to the protections of the Indian Trade and Intercourse Act, or Non-Intercourse Act, 25 U.S.C. § 177, if the tribe claiming reservation status and Non-Intercourse Act protection ceases to exist?

Analysis 

Analysis of First and Second Issues

Sherrill argues that the parcels of land at issue are taxable because they are not currently located within Indian country as defined under 18 U.S.C. § 1151. Sherrill's main argument is that the Second Circuit was incorrect in finding that the federal government set aside the land in New York for Indian use and placed such land under federal superintendence, as required to be Indian country by Native Village of Venetie Tribal Government. Native Village of Venetie Tribal Gov't.,522 U.S. at 520. Rather, it is contended that the properties were acquired in private, open-market transactions and benefit from

In Native Village of Venetie Tribal Government, the Supreme Court considered whether certain land owned by members of the Venetie tribe was part of Indian country. Id. at 527. The land had been part of the Neets'aii Gwich'in reservation, which was disestablished under the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601 et seq. and title was then conveyed to the Venetie native corporations, which then transferred title to the tribe. Id. at 524. The Court ruled that the land was not Indian country because it neither had been "set aside by the Federal Government for the use of the Indians as Indian land" nor was "under federal superintendence". Id. at 527, 532-34. This is the authoritative test to determine land's status as Indian country.

Sherrill compares the Oneidas to the Venetie, claiming that since the Oneidas purchased the properties and can freely alienate them, the land no longer be in Indian country. Oneida Indian Nation, 337 F.3d at 155. However, it would appear that under the Treaty of Canandaigua, the federal government did approve of the reservation created under the Treaty of Fort Schuyler, between the state of New York and the Oneidas, and therefore set aside the land for Indian use. However, it is the second "superintendence" prong of the Venetie test that makes deeming the parcels at issue in Indian country questionable. In Venetie, the Court reasoned that superintendence exists where the federal government "actively controls the lands in question, effectively acting as a guardian for the Indians." Native Village of Venetie Tribal Gov't, 522 U.S. at 533. Superintended land is "under the jurisdiction and control of Congress for all governmental purposes, relating to the guardianship and protection of the Indians." Id. The Second Circuit seemingly ignored this prong of the test in its analysis. However, when seriously considered, the federal government's superintendence, or guardianship of this particular land appears uncertain in light of the passage of federal removal acts, such as the 1838 Treaty of Buffalo Creek, subsequent to the Treaty of Canandaigua.

Analysis of Third Issue

Sherrill contends that even if the parcels of land were once Indian country, the land lost its status when the tribe moved from New York to Kansas under the 1838 Treaty of Buffalo Creek. Oneida Indian Nation, 337 F.3d. at 158; 7 Stat. 550. The city claims that even if the Oneidas did not physically move to the other side of the Mississippi, they received compensation from the state to cover the cost of the relocation as well as subsequent recovery of damages over Kansas land value, which were benefits derived from the exchange of their New York land. Id. at 164.

However, the Second Circuit noted pertinent authority regarding the interpretation of treaties dealing with Indian reservations. It is "well established that treaties should be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit." Oneida Indian Nation, 337 F.3d. at 158 (citing County of Oneida, 470 U.S. at 247). "Any finding that Congress has abrogated Indian treaty rights is inappropriate ‘[a]bsent explicit statutory language.'" Id. Congress' intention must be "clearly expressed."Id. (citing Hagen v. Utah, 510 U.S. 399, 423 (1994) (Blackmun J., dissenting)).

The pertinent language of the Treaty of Buffalo Creek, as stated above, does not seem to clearly indicate the intentional disestablishment of the Oneida reservation in New York, as required by the standards of interpretation. The Treaty of Buffalo Creek, in regard to the land at issue in New York, did not explicitly disestablish the reservation, but rather opened up the possibility that the Oneidas would remove to Kansas as soon as possible. If the Court does find that the parcels at issue are in fact Indian country, there is a strong likelihood that the Court will also find a lack of obvious congressional intent to disestablish the reservation through the Treaty of Buffalo Creek.

Analysis of Fourth Issue

Sherrill claims that the parcels of land in question lost their status as Indian country, as well as protection under the Non-Intercourse Act, 25 U.S.C. § 177, because the Oneidas ceased to exist as a tribe during a period at the end of the nineteenth century and the beginning of the twentieth century. Although the Second Circuit held otherwise, as explained in the first basic governing principle noted above, Indian country may cease to exist by dissolution of the tribe. Oneida Indian Nation, 337 F.3d. at 152

There is some legal support for the proposition that once an Indian tribe ceases to exist, the land it once owned can no longer be in possession of a non-existent entity. Judge Van Graafeiland, the Second Circuit's dissenter, noted authorities claiming the same. For example:

[W]hen an Indian tribe ceases for any reason, by reduction of population or otherwise, to actually and exclusively occupy and use an area of land clearly established by clear and adequate proof, such land becomes the exclusive property of the United States as public lands, and the Indians lose their right to claim and assert full beneficial interest and ownership to such land; and the United States cannot be required to pay therefore on the same basis as if it were a recognized treaty reservation.

Quapaw Tribe of Indians v. United States, 120 F.Supp. 283, 286 (CT.CL. 1954).

Also, to establish a prima facie case based on a violation of the Non-Intercourse Act, a group claiming to be a tribe must show that (1) it is an Indian tribe, (2) the land is tribal land, (3) the United States has never consented to or approved the alienation of this tribal land, and (4) the trust relationship between the United States and the tribe has not been terminated or abandoned. Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d. Cir. 1994)[emphasis added].

Although this may seem like a blatant error on behalf of the Second Circuit, that court did note that even if constant tribal existence were required, the Oneidas did not actually cease to exist. "Once a tribe has been recognized, the removal of that recognition, like reservation diminishment or disestablishment, is a question for other branches of government, not the courts. And Sherrill has identified no legislative or executive action withdrawing recognition." Oneida Indian Nation, 337 F.3d at 166 (relying on United States v. Holliday, 70 U.S. 407, 419 (1865)). A particular authority relied on by Sherrill, letters from the Assistant Commissioner ofIndian Affairs in 1916 and 1925, stated that the tribe no longer existed in New York; however, the court found that these sources were too informal and not representative of proof of federal action withdrawing the tribe from government protection.Oneida Indian Nation, 337 F.3d at 167. "This conclusion is, to some degree, understandable, since most of the Oneida reservation land had been sold to the State, with the remaining parcels divided among members who, increasingly, lived separately from one another and received state services." Id. at 167; See United States v. Boylan, 265 F. at 167-70. If this authority is considered to be insufficient, then Sherrill's arguments may be extremely weakened.

Conclusion 

Overall, the outcome of this case will likely have serious effects on the losing party. Although the decision may seem difficult to predict, it appears possible that the Supreme Court may follow the lead of both lower federal courts and ultimately affirm the Second Circuit's decision. It is also likely that the Court will find that the federal government set aside the land in New York for Oneida use under the Treaty of Canandaigua and that the two prong test as outlined in Native Village of Venetie Tribal Gov't is satisfied. Further, it seems probable that the Court will find that the language of the Treaty of Buffalo Creek does not clearly indicate an intentional disestablishment of the Oneida reservation in New York due to the Treaty's lack of explicit language on the matter. Finally, the Court will likely find that even though tribal existence must be continuous in order for the parcels of land at issue to remain Indian country and for the Oneidas to maintain protection under the Non-Intercourse Act, due to lack of formal authority stating differently, the Oneidas existence was continuous and therefore the lands at issue would remain Indian country and the tribe would maintain its protections.