Supremes Seek Solicitor General Review of Oneida Reservation Case

Gale Courey Toensing
3/4/13

 

The U.S. Supreme Court has postponed a decision on whether to hear a case regarding the status of the Oneida Indian Nation’s 300,000-acre historic reservation until it hears the Solicitor General’s view on the issue.

The high court announced the postponement in an order list released February 19, in which it announced which petitions are accepted, denied or otherwise dealt with.

The case involves a petition from Madison and Oneida counties in New York to the Supreme Court to review the 2nd Circuit Court of Appeals ruling that the Oneida Indian Nation’s 300,000-acre historic reservation remains intact—a ruling the appeals court rendered in 2003 and affirmed in 2010 and 2011.

“The Solicitor General is invited to file a brief in this case expressing the views of the United States,” the order list says. The announcement notes that, “Justice [Sonia] Sotomayor took no part in the consideration or decision of this petition.” Sotomayor used to be a judge on the 2nd Circuit Court.

The counties’ claim that Oneida Nation’s 300,000-acre historic reservation was “disestablished” by the 1838 Treaty of Buffalo and by two provisions in the Supreme Court’s ruling in City of Sherrill v. Oneida Nation—“that the Nation cannot exercise sovereignty over lands it purchases in the ancient reservation area” and “that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries.”

The Oneida Nation argue that the counties’ request for review should be denied because the issue is unique to the Oneida Nation, while the Supreme Court only reviews cases that apply widely. In addition, it argues that the case does not conflict with any Supreme Court precedent, is not an issue in which several circuit courts have rendered conflicting decisions, and is not an important issue of federal law that needs Supreme Court clarification.

Matthew Fletcher, associate professor at Michigan State University College of Law and Director of the Indigenous Law and Policy Center, said the Supreme Court issues a “Call for The View of the Solicitor General” when its interested in a case but also when the federal government either has some interest in the dispute or has unusual expertise in the subject area. “In Indian law, both factors are present. In the last few years, the Court has issued a large number of CVSGs in Indian cases. And in each of them, the SG has recommended denial. And Court almost always takes the SG's recommendation,” Fletcher said.

Fletcher said there were a number of reservation “disestablishment” cases from the 1960s until 1998, but none since then because a Supreme Court ruling in Solem v. Bartlett (1984) came up with a test, which is called “a fairly clean analytical tool,” for addressing whether a reservation has been disestablished. “All the lower courts have to do is apply the test. These cases are very, very fact specific. They're reservation by reservation, with no two reservations alike. Since every case is different, there's very little opportunity for conflict between the lower courts. And the [Supreme] Court usually won't take cases that do not require the establishment of a new rule by resolving a conflict between the lower courts,” Fletcher said. In the counties’ case, there’s no conflict unless the lower New York State courts come to a different conclusion than the 2nd Circuit, which has said the Oneida reservation remains intact. So there’s no reason for the Supreme Court to grant the petition, Fletcher said. “But Indian law is different, and this Court seemingly will carefully review every petition or case where the tribal interest wins below because three sovereigns are affected by every tribal jurisdictional victory. My prediction was that the Court here would invite the SG to file a brief for that reason, even if there was no other reason to file a brief.”

Finally, Fletcher said, the Solicitor General, as trustee of much of OIN's property rights, should recommend denial of the counties’ petition. “The SG has a pretty good track record in this vein. So I guess they will recommend a denial. That's bad news for the petitioners,” Fletcher said.

A decision isn’t expected until June at the earliest when the Solicitor General will file the brief.

Oneida Indian Nation owns Oneida Nation Enterprises, parent company of Indian Country Today Media Network.

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