Supremes Deny Oneida Appeal

Gale Courey Toensing
10/17/11

The U.S. Supreme Court has turned down a request from the Oneida Indian Nation to review a lower court decision that denied the nation the right to reclaim or be compensated for land that was illegally taken by the state of New York.

The decision to reject a writ of certiorari—a petition asking the Supreme Court to review a lower court’s decision—does not affect the nation’s businesses, said nation attorney Seth P. Waxman of the Washington, D.C.–based firm WilmerHale.

“The Supreme Court’s denial doesn’t have a bearing on the ongoing foreclosure litigation or on the nation’s application to have land taken into trust, which the Interior Secretary has agreed to, or on anything the nation does on its property with respect to its operations on a day-to-day basis,” Waxman said. “The denial of cert was a very discrete issue having to do with the failure of the state of New York to provide compensation for the purchase and sale of the Nation’s property in violation of the Nonintercourse Act.”

The 1790 Indian Trade and Intercourse Act, commonly referred to as the Nonintercourse Act, prohibits Indian lands from being sold or otherwise transferred without the approval of Congress.

The decision of the high court spells the end of this particular legal proceeding, leaving in place a 2nd Circuit Court of Appeals decision that denied the nation’s right to reclaim or be compensated for land that was illegally taken by New York state. The appeals court denial conflicted with an earlier Supreme Court ruling that supported the nation’s claim for damages stemming from the illegal seizure of its land.

The nation’s original lawsuit was filed against Madison and Oneida counties, both located in central New York, in 1974. It claimed damages for more than 250,000 acres of the nation’s ancestral lands which were taken over the course of nearly 200 years, when the lands were conveyed in multiple transactions to the state.

The federal courts found that those transactions were illegal under the Nonintercourse Act. The Oneidas originally possessed and occupied around 6 million acres in central New York and managed to hold onto a reservation of about 300,000 acres even after the state of New York obtained most of the Oneidas’ territory in 1788, according to the nation’s petition to the high court.

In 1793, Congress strengthened the terms of the 1790 Nonintercourse Act by adding that “no purchase” made in violation of the act “shall be of any validity in law or equity.” Congress also included criminal penalties for violators. The following year, the nation and the federal government signed the Treaty of Canandaigua, which recognizes the Oneidas’ right to possess the reservation lands and guarantees their continued possession of it.

But regardless of the treaty and the Nonintercourse Act, and despite warnings that it was violating federal law, New York kept acquiring Oneida land without congressional approval, and vastly profiting from it. By the mid-20th century, the state had illegally acquired almost all of the 300,000 acres, leaving the nation with only around 32 acres of its aboriginal territory.

After more than 40 years of litigation, and many more years of complaints by the Oneida people seeking the federal government’s involvement, the nation’s case reached the 2nd Circuit (for the fourth time) in August 2010. Significantly, the United States had intervened on behalf of the Oneida nation in the case, based upon the federal government’s obligation to enforce and defend its treaties from violators.

A panel of three judges thereupon ruled that the nation did not have a “possessory right” to reclaim the more than 250,000 acres that were taken by New York and sold for profit. The judges also said the Oneidas lacked a “non-possessory right” to claim restitution, which they now claim to be worth roughly $500 million. The nation’s request for rehearing was denied last December.

The nation’s petition for a writ of certiorari was filed in May and included, once again, the United States as a co-petitioner along with the Oneidas.

The decision has no bearing on the Oneida Indian Nation’s other pending legal cases involving property tax claims against the nation and challenges to the Interior Secretary’s decision to take 13,000 acres of nation lands into trust.

Mark Emery, the Oneidas’ director of media relations, vowed that the nation will fight on.

“This [Supreme Court’s] determination does not change the Oneida Indian Nation’s litigation strategy,” he said.

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