Thanksgiving and the Madison County v. Oneida Indian Nation Case
November 27, 2013
Thanksgiving and the Madison County v. Oneida Indian Nation Case
Thanksgiving is always a good time for non-Natives to reflect on the colonial history of the United States and particularly the lands that have been granted by tribes in some cases and, in others, taken forcibly or through patently unfair negotiations. And this term, a case pending before the Supreme Court raises these very issues. As the current Court term churns along and conferences and arguments are conducted and orders are issued, one case from last term--Madison County v. Oneida Indian Nation of New York—remains stalled. The case was distributed on January 30 for a February 15 conference, and thereafter the Solicitor General was invited to present the views of the United States, which he has not yet done. The main issues in the case are (1) whether the Oneida Indian Reservation in New York has been diminished or disestablished (despite a 1985 Supreme Court holding that New York’s 1795 land purchase from the Tribe was void because it had not been federally ratified) (2) and whether the Tribe’s sovereign immunity bars foreclosure of its land for nonpayment of taxes.
In the Counties’ brief in support of the petition for certiorari, they claim that a holding in the Tribe’s favor on the disestablishment question would contravene the “justifiable expectations” of non-Indians in the area, who have come to expect to be exposed to little if any tribal presence or power. As I explained in a recent article, the Supreme Court routinely makes similar assumptions in favor of non-Indian residents and past land purchasers in tribal jurisdiction and reservation diminishment cases. See generally Ann E. Tweedy, “Unjustifiable Expectations: Laying to Rest Allotment-Era Settlers,” 36 Seattle U. L. Rev. 129 (2012). There are numerous problems with this type of assumption, however, and it can be hoped that the Solicitor General will raise some of them in his response.
One problem is that the Supreme Court does not evaluate these presumed non-Indian expectations in historical context to ensure that were in fact justifiable, or, in other words, rooted in justice. ... in many cases, tribes were deprived of the lands unfairly (and illegally by constitutional takings standards) and surrounding settlers knew of these injustices when they purchased tribal lands. Another related problem is that the Supreme Court does not address whether Indians and tribes have—or had—justifiable expectations with respect to their own land rights, which should be weighed in the analysis. ...
Although the Oneidas were deprived of their lands through illegal purchases earlier than many other tribes, there is ample information about the injustices in their land transactions both with private speculators and the State of New York. ...
Much more
http://bit.ly/187zNBv
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Acc'd to scotusblog, the case is still pending
