AUG 12 2010

No. 10-72

MADISON COUNTY ANDONEIDA COUNTY, NEW YORK, PETITIONERS

ONEIDA INDIAN NATION OF NEW YORK ANDSTOCKBRIDGE-MUNSEE COMMUNITY,

BAND OF MOHICAN INDIANS

ON PETITION FOR A WRIT OF CERTIORARITO THE UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

BRIEF FOR CITIZENS EQUAL RIGHTSFOUNDATION, CITIZENS EQUAL RIGHTS

ALLIANCE AND CENTRAL NEW YORKFAIR BUSINESS AS AMICI CURIAE

SUPPORTING PETITIONERS

JAMES J. DEVINE, JR.Counsel of Record

128 Main StreetOneida, NY 13421JDevine@centralny.twcbc. corn(315) 363-6600

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MOTION FOR LEAVE TO FILEBRIEF AMICI CURIAE

Citizens Equal Rights Foundation (CERF) (1), CitizensEqual Rights Alliance (CERA)(2) and Central NewYork Fair Business (CNYFBA) (3), (collectively "theAmici"), by their undersigned counsel, respectfullymove for leave to file the attached brief as amici curiaein support of the Petition for Writ of Certiorari. TheAmici have requested and obtained the written consentto file this brief from Petitioners, Madison County andOneida County.

The Oneida Indian Nation (OIN) of New York,Respondent, was requested but refused.

The Petition seeks review of the decision of the UnitedStates Court of Appeals for the Second Circuitaffirming the judgment of the district court that ruledthe "OIN is immune from the Counties’ foreclosureactions under the principle that "(a)s a matter of federallaw, an Indian tribe is subject to suit only whereCongress has authorized the suit or the tribe haswaived its immunity."

The subject of this litigation involves application offederal Indian common law to pre-empt state law.

Moreover, the case concerns the application of thisCourt’s decision in City of Sherrill v. Oneida IndianNation, 544 U.S 197 (2005). CERF and CERA filed anamici curiae brief in the City of Sherrill case in support

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of the City of Sherrill and have continued to have asubstantial interest and involvement in the properapplication of the decision.

Specifically, the Amici have a substantial interest inthis litigation for several reasons. The Citizen EqualRights Foundation (CERF) was established by theCitizens Equal Rights Alliance (CERA), a SouthDakota non-profit corporation with members in 34states. CERF was established to protect and supportthe constitutional rights of all people, both Indian andnon-Indian, to provide education and trainingconcerning constitutional rights, and to participate inlegal actions that adversely impact constitutionalrights. CERF has a critical interest in this case, as theextension of the decision of the Second Circuit asprecedent will affect CERA members who own variousassets and pay property taxes on fee lands near tribalfee property all over the United States. Starting withthe amicus curiae briefs in City of Sherrill and Carcieriv. Salazar, (2009). CERF has maintained a consistentposition on limiting the Indian Reorganization Act(IRA) to only those tribes occupying actual federalIndian reservations in the Western United States. Thisbrief continues the discussion requiring the repetitionof some facts and adds new facts on how the IRA wasimplemented by the Indian Organization Division of theBureau of Indian Affairs not previously presented tothis Court. See http://www.narf.org/sct/sherrill/amiciequalrightsfoundation.pdf andhttp://www.nai~f.org/sct/carcieri/merits/cerf_et_al.pdf.

The Central New York Fair Business, Inc.,incorporated in the State of New York, isheadquartered in the City of Oneida. It is the purpose

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of Fair Business to identify and address significantissues affecting the equality of business opportunity incentral New York. Allowing the Oneida Indian Nationto assert sovereign immunity over fee lands to avoidthe payment of property taxes will adversely affect allcitizens of New York by creating an unequal businessadvantage and exempting the Oneida Indian Nation(OIN) enterprises from the laws of the State of NewYork and the regulatory authority of the Counties.

Members of the Central New York Fair Business, Inc.,further are resident citizens of Madison and OneidaCounties. They are homeowners and business owners inthe area where the parcels at suit are located. Theyshare common roads; common underground wateraquifer; and, common streams. They will be impacted astaxpayers by public costs resulting from any proposeduse of the parcels made by the OIN, including theimpacts of the casino or its expansion. Any proposeduse of the parcels by the OIN could affect theirproperty values, character of the community andcommunity safety if the civil and criminal jurisdiction ofNew York and the Counties are not applicable to theparcels because of tribal sovereign immunity. CERAand CNYFBA are also actual parties in the litigationagainst the Record of Decision to take most of theparcels of land at issue in the City of Sherrill case intotrust using 25 U.S.C. § 465 and the Part 151 regulations

Third, the Amici are experienced in and havebeen committed to furthering their interests by filingamicus briefs in other cases that have dealt with issuessimilar to those raised in this litigation.

The Amici are very familiar with the questions involvedin this litigation and have reason to believe that one

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significant legal question may not be fully addressed byPetitioner. Additional briefing would assist this Courtin determining whether to accept the Petition forCertiorari.

The Amici have a longstanding commitment tosafeguarding the civil rights of all Americans, and havean abiding interest in the welfare of all Americans,including the Oneida Indians of New York. For thesereasons, and those set forth in the attached brief, theAmici respectfully request leave to file a brief amicicuriae.

Respectfully submitted,

James J. Devine, Jr.128 Main StreetOneida, NY 13421(315) 363-6600fax (315) 361-4414JDevine@centralnv.twcbc.comVdrgranny@aol.comAttorney for Amici

8/12/2010

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iTABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ............................................................. ii

INTEREST OF THE AMICI CURIAE ............................................ 1

SUMMARY OF THE ARGUMENT .................................................. 3

ARGUMENT ...................................................................................3

CONCLUSION ...............................................................................24

ii

TABLE OF AUTHORITIESPage

CASES

CARCIERI V. SALAZAR, 129 S. CT 1058 (2009) .................... 1, 14CITY OF SHERRILL V. ONEIDA INDIAN NATION, 544

U.S. 197 (2005) ................................................................ passimCOUNTY OF ONEIDA V. ONEIDA INDIAN ~ATION, 470

U.S. 226 (1985) ................................................................ passimERIE RAILROAD CO. V. TOMPKINS, 304 U.S. 817

(1938) ........................................................................................ 19FLETCHER V. PECK, 10 U.S. 87 (1810) ....................................... 8HYNES V. GRIMES PACKING, 337 U.S. 86, 123 (1949) ............. 18JOHN,(UNITED STATES V. JOHN, 437 U.S. 634 (1978) ............ 14JOHNSON V. MCINTOSH, 21 U.S. 543 (1823) ............................... 9KIOWA TRIBE V. MANUFACTURING TECHNOLOGIES,

523 U.S. 751 (1998) .................................................................. 10LENNON V. SEAMAN, 63 F.SUPP.2D 428, 438-9

(S.D.N.Y. 1999) ......................................................................... 6MCCLANAHAN V. ARIZONA, 411 U.S. 164 (1973) .................... 20MORTON V. MANCARI, 417 U.S. 535, 545 (1974) ...................... 20NEVADA V. HICKS, 533 U.S. 353 (2001) .................................... 14OKLAHOMA TAX COMMISSION V. POTAWATOMI

TRIBE, 498 U.S. 505 (1991) ............................................... 13, 14OLIPHANT V. SUQUAMISH INDIAN TRIBE, 435 U.S.

201 (1978) ................................................................................. 12ONEIDA INDIAN NATION V. COUNTY OF ONEIDA, 414

U.S. 661 (1974) ................................................................ passimPUYALLUP TRIBE V. DEPARTMENT OF GAME OF

WASHINGTON, 433 U.S. 165 (1977) ....................................... 11SANTA CLARA PUEBLO V. MARTINEZ, 43~ U.S. 39

(1978) .................................................................................. 11, 12STARTING WITH MESCALERO APACHE V. JONES, 411

U.S. 145 (1973) ......................................................................... 20UNITED STATES AS GUARDIAN OF THE ~TALAPAI V.

SANTA FE PACIFIC RAILROAD, 314 U.S. 339 (1941) ......... 18UNITED STATES V. GRATIOT, ET AL, 39 U.S. 526

(1840) ........................................................................................ 16

iiiUNITED STATES V. KAGAMA, 118 U.S. 375,384-5

(1886) ........................................................................................ 19UNITED STATES V. McGOWAN, 302 U.S. 535 (1938) ..............17UNITED STATES V. MINNESOTA, 305 U.S. 382 (1939)... passimUNITED STATES V. UNITED STATES FIDELITY AND

GUARANTEE CO. ET AL., 309 U.S. 506 (1940) .............passimWOnCESTER V. GEOnGIA, 31 U.S. 515 (1832) ........................8, 9

STATUTES

25 U.S.C. § 177 .............................................................................. 825 U.S.C. § 462 ............................................................................ 1025 U.S.C. § 465 .............................................................................. 225 U.S.C. § 479 ...................................................................... 17, 18

RULES

Fed. R. Civ. Pro. 12 ...................................................................... 6

REGULATIONS

73 F.R. 30144-30146 ....................................................................21

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1INTEREST OF THE AMICI CURIAE

The Citizen Equal Rights Foundation (CERF)was established by the Citizens Equal Rights Alliance(CERA), a South Dakota non-profit corporation withmembers in 34 states. CERF was established to protectand support the constitutional rights of all people, bothIndian and non-Indian, to provide education andtraining concerning constitutional rights, and toparticipate in legal actions that adversely impactconstitutional rights. CERF has a critical interest inthis case, as the extension of the decision of the SecondCircuit as precedent will affect CERA members whoown various assets and pay property taxes on fee landsnear tribal fee property all over the United States.Starting with the amicus curiae briefs in City ofSherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)and Carcieri v. Salazar, 129 S. Ct 1058 (2009). CERFhas maintained a consistent position on limiting theIndian Reorganization Act (IRA) to only those tribesoccupying actual federal Indian reservations in theWestern United States. This brief continues thediscussion requiring the repetition of some facts andadds new facts on how the IRA was implemented bythe Indian Organization Division of the Bureau ofIndian Affairs not previously presented to this Court.See http://www.narf.org/sct/sherrill/amiciequalrightsfoundation.pdf and http://www.narf.org/sct/carcieri/merits/cerf et al.pdf.

The Central New York Fair Business, Inc.(CNYFBA), incorporated in the State of New York, isheadquartered in the City of Oneida. It is the purposeof Fair Business to identify and address significantissues affecting the equality of business opportunity in

2central New York. Allowing the Oneida Indian Nationto assert sovereign immunity over fee lands to avoidthe payment of property taxes will adversely affect allcitizens of New York by creating an unequal businessadvantage and exempting the Oneida Indian Nation(OIN) enterprises from the laws of the State of NewYork and the regulatory authority of the Counties.

Members of the Central New York FairBusiness, Inc., further are resident citizens of Madisonand Oneida Counties. They are homeowners andbusiness owners in the area where the parcels at suitare located. They share common roads; commonunderground water aquifer; and, common streams.They will be impacted as taxpayers by public costsresulting from any proposed use of the parcels made bythe OIN, including the impacts of the casino or itsexpansion. Any proposed use of the parcels by the OINcould affect their property values, character of thecommunity and community safety if the civil andcriminal jurisdiction of New York and the Counties arenot applicable to the parcels because of tribal sovereignimmunity. CERA and CNYFBA are also actual partiesin the litigation against the Record of Decision to takemost of the parcels of land at issue in the City ofSherrill case into trust using 25 U.S.C. § 465 and thePart 151 regulations.

Madison and Oneida Counties filed a generalconsent to any and all amicus curiae briefs that appliesto the filing of this Amicus Brief.1 The Oneida Indian

1 Pursuant to Rule 37.6 of the Court, no col~nsel for a party hasauthored this brief, in whole or in part. No person or entity, otherthan amici curiae, CERF and CNYFBA, its members or its parent

3Nation denied consent through Michael R. Smith to thefiling of this brief. Therefore this brief is accompaniedby a motion requesting this amici brief be filed.

SUMMARY OF THE ARGUMENT

The first section of this brief addresses the landstatus of the former and present state reservation landsand whether those lands qualify as federal "Indiancountry." This discussion includes how the lower courtsand Second Circuit incorrectly applied the priordecision in City of Sherrill v. Oneida Indian Nation,544 U.S. 197 (2005) to reach the erroneous conclusionthat the former Oneida reservation is "Indian country."The second section discusses tribal sovereign immunityand how treating the separate tribal governmentscreated by the Indian Reorganization Act as Article 1territorial governments affected federal case law onsovereign immunity. The final section of this briefexplains why the Indian Reorganization Act wasoriginally limited to only those tribes occupying federalIndian reservations on lands reserved before statehoodand why this Court needs to continue to limit theIndian Reorganization Act to only those Indian tribesso situated in June 1934 to protect state sovereigntyand equal protection of the law for all individualAmericans.

ARGUMENT

The Second Circuit concluded that since the landparcels owned in fee are still "Indian country," the

CERA’s members, or its counsel have made any monetarycontribution to the preparation or submission of this brief.

4Oneida tribe enjoys sovereign immunity from thecounterclaims brought by Madison and Oneida Counties(Counties) for unpaid property taxes. The SecondCircuit made this conclusion while agreeing that in Cityof Sherrill that this Court held that a state reservationwas created by the Treaty of Fort Schuyler in 1788before the Constitution of the United States took effect.The Second Circuit also concluded that even though theformer reservation had been under the continualjurisdiction of the state of New York it was still federal"Indian country."

The Counties petition emphasizes the wrongnessof the doctrine of sovereign immunity applying to theOneida. The Counties attempt to challenge the SecondCircuit’s conclusion that the taxed parcels are "Indiancountry" by alleging the Oneida reservation wasdisestablished or diminished as a matter of federal law.While the She~ill ruling calls into q~estion the equityof reestablishing long extinguished rights of tribalsovereignty, it did not expressly reach the issue ofwhether the former state reservation of land is or is notpresently federal "Indian country."

5THE CITY OF SHERRILL DECISION OFTHIS COURT OVERRULED THE PRIORRULING OF THE SECOND CIRCUIT THATTHE LANDS PURCHASED BY THE ONEIDAINDIAN NATION WITHIN THE FORMERRESERVATION BOUNDARIES WAS’~NDIAN COUNTRY"

a. The Ruling on Laches

The Second Circuit concluded that this Courthad explicitly not decided whether the Oneidareservation was disestablished in the City of Sherrilldecision. It therefore reasoned that its prior holdingdetermining that the parcels were "Indian country"was not overruled by this Court. Appendix A, 16a-17a,footnote 6. If the Second Circuit had concluded that theland parcels were not "Indian country" the OIN couldnot claim sovereign immunity to avoid the propertytaxes.

The City of Sherrill ruling can be applied toprove that the parcels subject to taxation cannot befederal "Indian country." As submitted by CERA andCNYFBA in their pending Motion for Reconsiderationin, 6:08-cv-00660-LEK-GJD, one of the pending fee totrust cases against the Secretary of the Interior, theconclusion by the Second Circuit that the formerreservation land was federal "Indian country" wasexpressly reversed by the application of the doctrine oflaches. By definition, laches stands for the propositionthat as a matter of equity the matter cannot be broughtup because too much time has passed. The SupremeCourt expressly held that it would upset "justifiableexpectations" to allow the claim. Sherrill at 215-7.

6Under the Federal Rules of Civil Procedure a dismissalunder the doctrine of laches is a dismissal pursuant toRule 12(b)(6) for failure to state a claim. If on a motionmade under Rulel2(b)(6) matters outside the pleadingare presented then the motion is treated as a motion forsummary judgment. Fed. R. Civ. Pro. 12. See alsoLennon v. Seaman, 63 F.Supp.2d 428, 438-9 (S.D.N.Y.1999). Therefore, the Supreme Court by expresslyreversing the judgment of the Second Circuit byapplying laches and precluding the hearing of theOneida’s claim that the land was not under thesovereign jurisdiction of New York nullified all thefactual findings and legal conclusions of the SecondCircuit ruling in the Sherrill case.

In addition, the Supreme Court ruling in Sherrillapplied laches to expressly reject that the OneidaIndians could assert any sort of sovereignty over thereacquired parcels. Justice Ginsburg addressed thefactual background from the standpoint that the land inquestion had been under state jurisdiction since 1805.Sherrill at 202. Determining that an area is federalIndian country is a determination that the area is underfederal jurisdiction. Justice Ginsburg specificallyconcludes that the land is under state jurisdiction, ittherefore cannot be under federal jurisdiction or be"Indian country." This legal conclusic.n alone overrulesby implication the Second Circuit cc, nclusion that theland is currently "federal Indian courttry" that entitlesthe OIN to claim sovereign immunity Lo avoid taxation.

7The Counties argue that the OneidaReservation was Disestablished orDiminished

Justice Ginsburg concluded that the OneidaIndian reservation was established by the Treaty ofFort Schuyler in 1788. This treaty was between theState of New York and the Oneida Indian Nation. Itwas in effect before the Constitution of the UnitedStates went into effect in 1789. The Oneida tribe cededall of its lands to New York and then the state reservedfor the use of the Oneidas the land they mutuallyagreed the Oneidas would retain for their occupancy.Sher~ill at 205. The Supreme Court further clarifies itsopinion in Footnote 1, directly citing the SecondCircuit’s previous 1988 decision that the Oneidareservation was a reservation of state land. Sherrill at203-4.

Justice Ginsburg continued that the Treaty ofCanandaigua in 1794 "acknowledged" the Oneidareservation. Then explains what that acknowledgementmeant and how the land stayed under state jurisdiction.Sherrill at 204-5. By contrast the Second Circuitconcluded that the federal government in the 1794treaty "recognized" the Oneida reservation. See 337F.3d at 167. There is no such thing as the federalgovernment "recognizing" an Indian reservation andthereby federalizing a state reservation of land. Afederal Indian reservation can only be established by"reserving" federal public domain land for a group ofIndians by treaty, executive order or congressionalaction. None of these occurred in New York because allof the land within the exterior boundaries of New Yorkwas under the jurisdiction of New York and not the

8government of the United States.

This Court in the City of Sherrill ruling appliedthe equitable doctrine of laches to limit its holding inOneida Indian Nation v. County of Oneida, 414 U.S.661 (1974)(Oneida I) and County of Oneida v. OneidaIndian Nation, 470 U.S. 226 (1985) (Oneida II) thatallowed the Oneida Indian Nation to sue to claimaboriginal rights they contended were violated by NewYork not complying with the Nonintercourse Act of1790, 25 U.S.C. § 177. The majority opinion in City ofSherrill expressly did not overrule Oneida II. Sherrillat 213. This Court in deciding City of Sherrillunderestimated the confusion that resulted regardingthe sovereignty of the State of New York by itsdecision in Oneida I.

This Court concluded in O~eida I that thefederal right of occupancy or "Indian title" was vestedin the United States for all Indian land. Oneida I at 667-70. It even concluded that this doctrine of a federalright of occupancy was absolute and applied to theoriginal colonies as interpreted in Fletcher v. Peck, 10U.S. 87 (1810) and Worcester v. Georgia, 31 U.S. 515(1832). This led to the conclusion that ~he Oneida IndianNation had a present right of occupancy over theformer state reservation and could sue the State ofNew York to reassert its sovereign rights. After 30years of litigation in various federal court actions, thisCourt decided in City of Sherrill that the doctrine oflaches applied to the claims of the OIN to prevent theOIN from rekindling embers of sovereignty that hadlong ago grown cold but did not expressly overrule anyof the prior holdings against the State of New York andCounties. This means that there is still an absolute

9federal right of occupancy or "Indian title" in OIN thatas a matter of equity will not be heard but can serve asthe basis for the OIN retaining inherent sovereigntyover the former state reservation to have tribalsovereign immunity from paying property taxes. It isnot surprising that attorneys and judges in New Yorkare confused by federal Indian common law that allowsextinguishing inherent tribal sovereignty bydiminishing or disestablishing the land base of a federalreservation while under Oneida I the "Indian title" cannever be extinguished from the state reservation.

II. TRIBAL SOVEREIGN IMMUNITY

Federal Indian common law defines inherenttribal sovereignty as existing as long as "Indian title"(as was defined in Johnson v. McIntosh, 21 U.S. 543(1823) and Worcester v. Georgia, 31 U.S. 515 (1832)) hasnot been extinguished. The holding in Oneida Iconcluded that the "Indian title" of the Oneidas was stillin existence. The holding in City of Sherrill preventsthe OIN from suing to reclaim its rights to rekindle asovereignty that had long ago grown cold by applyingthe doctrine of laches. This statement from City ofSherrill implies that the OIN does not enjoy inherentsovereignty over the former state reservation. It is thedisconnect between inherent tribal sovereignty andtribal sovereign immunity that creates the problem inthis case. Inherent tribal sovereignty was severed fromIndian title in City of Sherrill as explained above. Thequestion then is what is the basis of tribal sovereignimmunity if it is not based on inherent sovereignty?

This Court has already determined that the legalbasis of tribal sovereign immunity makes the whole

10doctrine suspect. See Kiowa Tribe v. ManufacturingTechnologies, 523 U.S. 751 (1998). The Courtmistakenly allowed tribal soverei.gn immunity tocontinue because it assumed that Congress would actand define limits for the doctrine. Tribal sovereignimmunity is a federal common law creation. If it isgoing to be limited, it is up to this Court to do it. As arecent law review article concludes, tribal sovereignimmunity is now the strongest part of tribalsovereignty.2 The law review article makes suggestionson how to use tribal sovereign immunity to make newclaims of tribal sovereignty.3

a. Origin of Tribal Sovereign Immunity

Tribal sovereign immunity did not even existuntil 1940 and the decision in United States v. UnitedStates Fidelity and Guarantee Co. e~-i al., 309 U.S. 506(1940). This decision cites United States v. Minnesota,305 U.S. 382 (1939) that extended federal sovereignimmunity to the Indian Nations und,er the tutelage ofthe United States. U.S. Fidelity at 513, Fn 14. TheMinnesota Court found that Section 2 of the IRA, 25U.S.C. § 462, extending indefinitely the trust period forallotted lands had negated previous acts of Congressthat gave the states specific rights to sue and condemnIndian allotments in state court wil~hout naming theUnited States as an indispensable party. Minnesota at387. In Minnesota v. United States, the sovereignimmunity of the United States was e~:panded to include

~ See Indian Country’s Border: Territorialit~, Immunity, and theConstruction of Tribal Sovereignty, by Katherine J. Florey,Boston College Law Review Volume 51:595~ Id. at 649-53

11all "Indian land" per a regulation promulgated in 1938.Minnesota at 390, Fn 7. One year later, the U.S.Fidelity Court extended federal sovereign immunity tocover tribal interests because of public policy. U.S.Fidelity at 512-4. This new public policy was created bythe adoption of the Indian Reorganization Act (IRA) of1934 as discussed in U.S.v. Minnesota. Minnesota at387-90.

While the Minnesota and U.S. Fidelity casesexpanded federal sovereign immunity and effectivelymade the federal courts the exclusive courts to hearclaims to condemn Indian lands for public purposes,these cases do not actually decide that the sovereignimmunity belongs to the Indian tribe. In fact, this Courtin U.S. Fidelity concludes "It is as though the immunitywhich was theirs as sovereigns passed to the UnitedStates for their benefit, as their tribal properties did."U.S. Fidelity at 512.

It is not until Puyallup Tribe v. Department ofGame of Washington, 433 U.S. 165 (1977) and SantaClara Pueblo v. Martinez, 436 U.S. 39 (1978) that thisCourt reinterprets U.So Fidelity to find independenttribal sovereign immunity as a matter of federal Indiancommon law. The Justice Department acting in anamicus capacity stated that the Solicitor General has noauthority to waive the sovereignty of the tribe.Therefore, this Court was left to decide either the tribehad no sovereign immunity or the tribe’s sovereignimmunity is separate from the sovereign immunity ofthe United States. See Puyallup at 170-1. A similarploy was used in Santa Clara by the JusticeDepartment where they cut and pasted clauses fromseparate sentences in U.S. Fidelity to have this Court

12conclude "But ’without congressional authorization,’ the’Indian Nations are exempt from suit.’ Id. at 512."Santa Clara at 58.

As this Court correctly concluded in U.S.Fidelity and Minnesota, since the IRA was passed in1934 all Indian land over which a tribe can exerciseinherent sovereignty is held in trust for Indian tribesby the United States. Therefore, it is the sovereignimmunity of the United States as the trustee to theIndians and as owner of the Indian land that iscontrolling. To hold otherwise allows the United Statesto be completely unaccountable when it supports theIndian tribes and individual Indians as federalinstrumentalities to challenge state jurisdiction. ThisCourt realized that it had been misled about theexpansion of tribal sovereignty being "harmless" when "it smacked into the loss of individual rights and statejurisdiction that would have occurred if the UnitedStates had been able to "sell" tribal criminaljurisdiction over non-Indians in Oliphant v. SuquamishIndian Tribe, 435 U.S. 201 (1978). Unfortunately, therealization that tribal sovereignty had to be restrictedin keeping with their status as dependent sovereignsdid not translate into the realization that tribalsovereignty was threatening the constitutionalstructure of federalism for almost twenty years. ThisCourt should now consider limiting tribal sovereignimmunity to comport with the IRA.

13The City of Sherrill Ruling isUnenforceable if Tribal SovereignImmunity Applies to the ParcelsOwned in Fee by the Oneida IndianNation

This Court ruled in City of Sherrill that theOneida Indians cannot rekindle embers of sovereigntythat have long ago grown cold. This statement is notaccurate if the State of New York and the Counties ofMadison and Oneida are prevented from enforcing statejurisdiction because of tribal sovereign immunity. Mostimportantly, the "unification theory" that inherentsovereignty through Indian title can somehow berejoined to lands purchased in fee must be completelylaid to rest. Nothing threatens state sovereignty morethan a federal Indian common law theory that inherentIndian sovereignty can be restored to Indian tribes thathave lands placed into trust status or reacquire feeownership over lands within a former reservation. Andthis Courts ruling in Oklahoma Tax Commission v.Potawatomi Tribe, 498 U.S. 505 (1991) raises the verypossibility that all lands placed into trust by the UnitedStates can restore tribal sovereignty by holding that allsuch lands are subject to tribal sovereign immunity. Id.at 511.

The question presented in Potawatomi wasartfully constructed to misconstrue the federalismconflict. "The issue presented in this case is whether aState that has not asserted jurisdiction over Indianlands under Public Law 280 may validly tax sales ofgoods to tribesmen and nonmembers occurring on landheld in trust for a federally recognized Indian tribe." Id.at 507. This characterization of the issue makes it

14appear that the state refused to exercise jurisdictionover Indian land except to assess taxes on it. The parcelof land on which the convenience store that sold thecigarettes was situated was held in trust by the UnitedStates pursuant to the IRA. Id. at 507. In fact, theparcel where the convenience store was located was offreservation fee land that had probably been taken intotrust pursuant to the IRA, 25 U.S.C. § 465. Id. at 511.For the first time the Oklahoma Tax Commissionargued that these newly acquired off reservation landsshould be treated as continuing under state jurisdiction.This Court summarily rejected the idea:

"Here, by contrast, the property in question isheld by the Federal Government in trust for thebenefit of the Potawatomis. As in John,[UnitedStates v. John, 437 U.S. 634 (1978)] we find thatthis trust land is ’validly sel~ apart’ and thusqualifies as a reservation for tribal immunitypurposes. 437 U. S., at 649."

Id. at 507. This conclusion directly contradicts therationales in the more recent decisions of Nevada v.Hicks, 533 U.S. 353 (2001), City of Sherrill v. OneidaIndian Nation, Carcie~ v. Salaza.r and Hawaii v.Office of Hawaiian Affairs, 129 S.Ct 1436 (2009) andmany other rulings that have limited the removal ofstate jurisdiction by the United States on behalf ofIndian tribes.

In this case, the conflict between Oklahoma TaxCommission v. Potawatomi Tribe ar.d City of Sherrillv. Oneida Indian Nation could not be more stark. If theSecond Circuit ruling is not overturned againstMadison and Oneida Counties it will effectively negate

15the City of Sherrill ruling.

III. STATE SOVEREIGNTY IS THREATENED BYFEDERAL INDIAN COMMON LAW

To fully grasp the nature of this threat to thesovereignty of the State of New York it is necessary todefine the underlying policy of the IRA and that policyhas been interplayed and expanded through federalIndian common law. As came to light in the briefing ofCarcieri v. Salazar, the IRA as passed by Congress wasnot the very expansive original version of the IRAsubmitted by John Collier. This led to serious problemsof the Bureau of Indian Affairs and the solicitors for theDepartment of the Interior over interpreting the verylimited act actually passed by Congress. The Bureau ofIndian Affairs had created a special division of IndianOrganization on January 1, 1934 in anticipation of thepassage of the sweeping IRA proposal. The IndianOrganization Division (IOD) was the sponsor of the tenspecial Indian congresses that were held all over thecountry to promote the passage of Commissioner JohnCollier’s IRA. This division led personally byCommissioner Collier made many promises at theconferences and in correspondence to specific tribesover how the IRA would help them to gain theirsupport for its passage in Congress. Many promiseswere made by the IOD while legislation was pendingthat the IRA would apply to the tribes that no longerhad a land base or tribal organization, including theCalifornia Indians. Congress in particular reactednegatively against the idea of "restoring" tribalidentities in California that had been wiped out by theSpanish and Mexican Mission system.

16Although the most extreme parts of Collier’s

IRA were removed by Congress, the IRA as passed byCongress did adopt Commissioner Collier’s concept ofcreating separate tribal municipal governments. Thereis only one clause of the Constitu’~ion that containsauthority for the federal government to establish localmunicipal governments: the Property Clause, Art. IV,Sec. 3, C1. 2. The Property Clause expressly sets theauthority of the Congress to acquire territorial landsand dispose of the territorial lands of the United States.The Property Clause also allows territorial land to bereserved for federal uses and to establish localgovernments to prepare the people in those areas forcitizenship. See United States v. Gratiot, et al, 39 U.S.526 (1840).

These "tribal governments" created by the IRAwere not based on the traditional and often uniquecustoms of the various tribes. In fact, the IOD for eachregion of the BIA created a model constitution for whatthe division considered the most advanced tribe thatwas only slightly modified for other tribes. Thedifferences in the tribal constitutions between regionsare minor. The solicitors and staff of the IOD inWashington, D.C. were solely responsible for thecreation of all of these tribal constitutions that ape thethree part system adopted for our national governmentand states. The tribal constitutions contain no checksand balances, no separation of powers and no definedcourt system of any kind although they all containprovisions for some type of tribal court to be set up.These tribal constitutions were obviously not written tobe sustainable forms of government. There purpose wasto educate the Indian people about our system ofgovernment. If a tribe voted to reject the mock

17constitution given to them by the IOD, they lost thebenefits of being an IRA tribe. In addition, no tribeeven now can amend an IRA constitution withoutfederal approval.

Commissioner Collier fervently believed that all"Indians" needed to learn to become good citizens of theUnited States and that the IRA should apply to all ofthem regardless of whether they lived on a federalIndian reservation or not. He believed Congress waswrong for limiting the application of the IRA in 25U.S.C. § 479. Collier and the IOD became very creativein interpreting Section 479 to avoid its’ limitations. TheIOD through its own solicitors started court cases toexpand or justify their interpretation of the IRA. Thisincluded solicitor Felix Cohen who was assigned byIOD to write the Handbook of Federal Indian Law. Theblatant and aggressive actions of Collier and the IOD toexpand the IRA to be more like Collier’s original billhelped create the fervor in Congress to repeal the IRAjust two years after it was made law. This Courtcontributed to this furor by allowing almost totaldeference to the IOD’s interpretations of federal Indianpolicy in at least the four cases discussed below.

One of the first cases brought by suggestion ofthe IOD was United States v. Minnesota, 305 U.S. 382(1938). The legislation of the IRA as passed did notrepeal any of the prior allotment acts of Congress. It isthrough the federal Indian common law decision inMinnesota that the IOD could extend the IRA over allformer allotted lands. The next case was United Statesv. McGowan, 302 U.S. 535 (1938). In McGowan, the BIAwas allowed to characterize fee lands purchased for theIndian colony in Nevada to be defined as "Indian land."

18By equating all types of "Indian lartd" as a matter offederal common law, the IRA is not confined to federal"reservations" as defined in Section 479. The IOD thenused the Indian trust to invoke the paramountsovereign authority of the United States in UnitedStates as Guardian of the Walapai v. Santa Fe PacificRailroad, 314 U.S. 339 (1941). This decision arguablymakes all former "Indian land" federal "Indian country"again as a matter of federal Indian common law. Thesecases along with U.S. Fidelity to extend federalsovereign immunity over tribal interests to create"tribal sovereign immunity" as federal Indian commonlaw discussed at length above were designed to getaround the restrictions placed into 25 U.S.C. § 479.Collier and the IOD thought they had the IRA rightwhere they had wanted it until Attorney GeneralRobert Jackson at the urging of Congress created a"uniform policy to be followed by the departments andagencies of the Federal Government in securingjurisdiction over lands acquired by the United States"to stop Collier and the IOD from removing any landsfrom state jurisdiction without express state consent.Letter from Attorney General Jackson to Secretary ofthe Interior Harold Ickes, dated March 31, 1941, No.151695, Record Group 75, Entry 132B, DepartmentalMemo, Box 1, BIA Orders. The actual form the statewas required to complete is attached to the letter.When the Executive branch changed its position, thisCourt soon followed with the ruling in Hynes v. GrimesPacking, 337 U.S. 86, 123 (1949) that placed the federalIndian trust lands within the overriding context of theequal application of the law. Whether this application ofequal protection was used to invoke a limitation offederal Indian common law by applying a rationalesimilar to the one used in Erie Railroad Co. v.

19Tompkins, 304 U.S. 817 (1938) is not made clear by thedecision.

Fundamentally the policy of the IRA was tocreate separate municipal like governments to begoverned under Article I authority of the United StatesCongress just like all territories of the United States.To this day, all tribal courts derive their authority fromthe Administrative Article 1 Courts of Indian Offenses.By allowing the policy of the IRA to be expandedthrough Supreme Court rulings expanding federalIndian common law has threatened how Congressintentionally limited the IRA. It has also allowed theIRA to apply to bands of Indians not occupyingreserved federal land or a federal enclave to directlychallenge the sovereignty of the state by claiming todisplace its jurisdiction over any land owned by"Indians."

With President Nixon’s Message to Congress ofJuly 8, 1970, the era of the Nixon Indian Policy began.It was based on making the policy of the IRApermanent. Because the Secretary claimed he coulddefine which Indian tribes were "recognized" as acontinuing power, the power claimed by PresidentNixon was unlimited by any constitutional restraints.As the first heading of the Nixon Message says: Self-Determination Without Termination. The policy goeson to articulate how any federal program can bedelegated to tribal authority. This is unlimitedExecutive authority to define the Indian trust. Nolonger is there any deference to Congress required asthis Court assumed in United States v. Kagama, 118U.S. 375, 384-5 (1886). President Nixon took his newlydeclared "Indian trust" power without any act of

20Congress and proceeded to the federal courts to havehis assumed power legitimized as federal Indiancommon law. Starting with Mescalero Apache v. Jones,411 U.S. 145 (1973) and McClanahan v. Arizona, 411U.S. 164 (1973), this Court again allowed off reservation"trust responsibility" as it had previouslyacknowledged in U.S. v. Minnesot, a, McGowan andSanta Fe Pacific Railroad. This Court allowed theNixon Administration to reinterpret the IRA into apermanent policy to intentionally threaten theconstitutional structure and federalism. See Morton v.Mancari, 417 U.S. 535, 545 (1974). This virtuallyunlimited executive power is what the Supreme Courtunleashed on the people and State of New York inholding that as a matter of federal Indian common lawthe Oneida Indian Nation could sue to claim itspurported federal rights to its former Indianreservation in Oneida I.

b. The Sherrill Decision

This Court began placing the Indian trust power backwithin the structure of the Constitution of the UnitedStates with the City of She~ll ruling by specificallyrebalancing the equities to limit the jurisdiction of thefederal courts to expand the "Indmn trust" throughfederal common law rulings. She,’ill at 218-20. ThisCourt in Sherrill expressly rejected the "unificationtheory" of the Nixon administration that allowed amerger of Indian title and fee ownership to restoretribal sovereignty to land that had been under statejurisdiction. Id. at 213-4. But She~ill has not resolvedthe underlying problem of the loss of state jurisdictionto tax the parcels owned in fee by the Oneida tribe thatare the subject of this case or the jurisdiction of Seneca

21and Cayuga Counties to enforce state law to preventthe sale of untaxed cigarettes. In fact, the New YorkState Court of Appeals in Cayuga Indian Nation v.Gould, 2010 N.Y. Lexis 981 (May 11, 2010) expressedits own confusion on whether federal Indian lawpreempts state jurisdiction not knowing how to applySherrill against the direct assertions of the tribe andthe United States that it does not have jurisdiction toenforce its laws on lands claimed to still have somefederal protection.

Then on August 9, 2010 the Second Circuit usedSherrill to end all land claims by the Oneida in NewYork. See Oneida Indian Nation of New York, et al. v.County of Oneida, et al., 07-2430-cv(L), 07-2548-cv(XAP), 07-2550-cv(XAP). It is very unlikely that theOneida Tribes and United States will allow the SecondCircuit to end forty years of land claim litigationexpressly allowed by Oneida I and Oneida H withoutchallenging the Sherrill decision. The Sherrill rulingalso did not resolve the fee to trust issue in New York.The Secretary of Interior asserts the authority to take13,004 acres of fee land into trust for the Oneida IndianNation of New York. See Record of Decision, May 20,2008. 73 F.R. 30144-30146. It is the position of Amicithat fee to trust as currently interpreted in the Part151 regulations is just another version of the same"unification theory" rejected in the Sherrill decision.As stated earlier in this brief, the She~rqll ruling doesnot correct forty years of the jurisdiction of the State ofNew York being challenged by the United States onthe sole behalf of Indian tribes.

It is the position of Amici that the ruling inOneida I that "Indian title" did not cede to the State of

22New York along with the right of preemption inFletcher v. Peck was a fundamental error inconstitutional law that undermines state sovereignty.This is especially true because Worcester v. Georgia canbe easily distinguished from the situation in New Yorkby distinguishing the cession treaty of the Cherokeemade with United States from the Treaty of FortSchuyler that was made between the New YorkIndians and the State of New York. All sovereignty isbased on the right to govern land. By removing "Indiantitle" from the original thirteen colonies, a significantpower was removed from the bundle of authority left tothe states and people that could be used to attack thevery basis of state sovereignty. This fundamentalmistake in weakening state sovereignty has been aptlydemonstrated in New York by the constant andcontinual threats of removing land from statejurisdiction.

The removal of "Indian title" from thepreemption rights of the original colonies couldarguably make "Indian title" an asset of the UnitedStates subject to plenary authority under the IndianCommerce Clause, Art. I, Sec. 8, C1.3. Admittedly, thiswould be a major stretch of the legal concept of "Indiantitle." However, it would make sense as the basis forthe so-called "unification theory" put forward by theOneida Indian Nation in Sherrill. The idea that fee titlecould be unified with never extinguished "Indian title"to restore inherent tribal sovereignty is exactly thesort of theory that attorneys for the Nixonadministration were promoting. See http//:citizensalliance.org Nixon Memorandum. Fungible"Indian title" could also be the underlying basis fortribal sovereign immunity applying when the tribe

23claiming the immunity has no sovereignty over the landas in this case. Because decisions like Oneida I weremade in the context of federal Indian common law, thefederal courts accepted whatever the United Stateswas proposing as long as it appeared to be on behalf ofthe Indians. No questions were asked about where thefederal power came from because it was all under the"Indian trust relationship." As the Nixon Memorandumexposes, at least this one administration was more thanwilling to take advantage of using the Indians tomassively expand Executive authority knowing theywere unbalancing the Constitution and flauntingseparation of powers. Once the policy was established,it is hard to imagine bureaucrats and politicians underany administration not reaching to use it.

It is time to correct this fundamental error inconstitutional law and restore inviolable statesovereignty. This Court has laid the groundwork thatallows for the rebalancing of the sovereign interests soimportant to maintaining our system of constitutionalself-government. This case and the other cases comingto this Court from New York create the opportunity torectify most of the harm that has been done againststate sovereignty by the Nixon Indian policy.

24CONCLUSION

The Court should reverse theSecond Circuit.

Respectfully submitted,James J. Devine, Jr.Counsel of Record128 Main StreetOneida, New York 13421(315) 363-6600

decision of the