This is a serious post, and also probably the last post until next Tuesday. Enjoy the long weekend, if you're so lucky.
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From Wednesday, March 30, 2005
Bad (Indian) Law
City of Sherrill v. Oneida Indian Nation of N.Y., 544 U.S. ___ (2005)
On Tuesday, the Supreme Court came down with a very important Federal Indian Law case which involved the right of an Indian tribe, the Oneidas of New York (one of the Six Nations), to purchase land that once belonged to its reservation. The town of Sherrill sought to tax the land, and the tribe asserted its sovereignty as a defense, claiming it had the right to return this purchased lands to its reservation.
Justice Ginsburg wrote what I can only describe as a disastrous opinion. Basically, her main argument is that the Oneidas waited too long to assert their claims to this land. As support, she mentions the doctrines of laches and acquiescence. In addition, she claims that it would be impractical to return these lands to the Indians, since non-Indians had control of them for so many years.
1) First, Justice Ginsburg's claims that the Indians waited too long is just plain ridiculous. While it may be true that Indian nations had a legal right to assert their claims in court, it is ludicrous to actually believe this was practical. Since the early republic, the U.S. government set about on a policy of removal and disbandment, meant to assimilate Indians, remove them totally from U.S. society, or destroy them permanently. Even Ginsburg's opinion makes it clear that the Oneidas became scattered, which was the result of federal Indian policy at the time. She also mentions that the Oneidas long ago forfeited their tribal ways; however, she does not admit that this was less a voluntary act and more the result of pressure and the necessity of survival as a result of federal Indian policy. Her opinion does not addresses these issues at all, but seems to take the position that the Oneidas could have done something all along, but failed to act. In effect, this is their fault, not the fault of more powerful government working against them.
To bolster her position that this is the Indians fault, Ginsburg first points to the laches. It should be noted that one of the cases she cites to for support is from 1892---not the most Indian friendly of times in United States history. The other cases in this section are from even earlier. She writes, "It is well established that laches, a doctrine focused on one side’s inaction and the other’s legitimate reliance, may bar long-dormant claims for equitable relief." Opinion at 17. Again, this doctrine assumes that the participants are on somewhat equal footing---that the party that was not acting could have acted but failed to do so. But historically that dog don't hunt, as they say where I'm from. Ginsburg herself notes that the Indians had been scattered, and although she doesn't admit it, this was not voluntarily. The Oneidas, like many Indians, were often saddled with personal debt, much of it incurred through raw dealings with white settlers who were consistently supported by state governments and courts. Animosity and racism by the whites also lead to conflicts with the Indians. It is disingenuous to argue, I think, that the Indians stood by and let the white settlers rely on their claims---if anything, the Indians were powerless to do anything about it.
Next, the court cites to acquiescence as another reason why the Indians are at fault for not acting sooner. Ginsburg writes, "As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory." Opinion at 18. But all the cases Ginsburg cites too are cases between states, not between states and Indian nations. States are equal sovereigns to each other. That is certainly not the case as between states and Indian nations. Long ago it was held that Indian tribes are "separate nations within a nation" or a "domestic dependent nation." Cherokee Nation v. Georgia, 30 U.S. (5 Peters) 1 (1831). This is not the kind of language we use when referring to the states as compared to the federal government; this is something different that connotes a lower kind of sovereignty. So, while the Oneidas may have had a legal right to bring a claim, they had already been disbanded and scattered as the result of Indian policy, and in reality they were not on equal footing with the state. Thus, because of this inequality, it is unfair to use the doctrine of acquiescence.
2) Ginsburg then says that it would just be impractical to do this because for two hundred years non-Indians had relied on these claims, and the state had had jurisdiction. She barely responds to the Court of Appeals argument that the only thing really affected here is taxing authority. Justice Stevens, in his dissent, rightly notes that Ginsburg's zoning arguments are inaccurate because Congress can abrogate tribal sovereignty when it decides to do so, and the Supreme Court has held that there is a balancing test to determine whether the state can enforce its laws on the reservation. Thus, the Court here should not be worried that zoning laws will run amok, but instead concentrate on the issue at hand, taxing authority.
The Second Circuit is correct that the only real problem here is tax revenue for the City. This seems to me such a minor issue as compared to the sovereignty and rights of an Indian nation. Other than the revenue collecting capability of the town, not much else would be affected. Indeed, most likely zoning laws regarding the safety of citizens would be applicable to Indian lands as well, so there is nothing really to fear from the patchwork quilt envisioned by Ginsburg. Impracticality is simply a weak argument here because while the loss of revenue is certainly annoying for the town, it does not involve the same situation where an Indian tribe is demanding that land be given back to it. Instead, the Oneidas here purchased their land on the open market from people willing to sell it. There is no way this "seriously burdens the administration of state and local governments" aside from filling their treasuries.
3) What is most sad about this opinion is that the Supreme Court once again is condoning the destruction of Indian communities and the Indian way of life. As I've mentioned before, Indian communities and reservations are in a crisis. The Minnesota high school shooting is but the most recent public example. As some tribes recently have found ways to improve economic development, they are attempting to rebuild their communities which were destroyed over the past two hundred years of U.S. rule. This opinion deals a severe blow to Indian economic recovery, and to the efforts of Indians to pull themselves out of poverty. Aside from poverty, suicide and alcoholism are rampant on reservations. Teen pregnancy and drug use are at staggering rates, as is domestic violence. This case is not about money or property; it is about rebuilding a community and a people that have been destroyed and forgotten.
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