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Passage of time at issue in Oneida Nation case

New York's smallest city and its most powerful tribe sparred over treaty rights, sovereignty and taxes before the U.S. Supreme Court on Tuesday.

During an hour of oral arguments, members of the high court heard a familiar tale about the Oneida Nation and its 300,000-acre reservation. Despite being recognized by a treaty with the United States in 1794, the justices were told that land fell out of the tribe's possession over the next two hundred years through a series of transactions with the state.

As a result, the city of Sherrill said the tribe can't assert sovereignty over the reservation even after reacquiring properties within its boundaries. Lawyer Ira S. Sacks told the court that the passage of time bars the tribe from claiming the land as Indian Country, free from state and local taxation.

"The passage of 190 years has extinguished that right," he argued, citing the years between the loss of the properties at issue in 1805 and the tribe's repurchase of them during the 1990s.

But Michael R. Smith, a lawyer for the Oneida Nation, countered that the reservation still exists after all this time because the U.S. never approved the sale of the land. Only the federal government can terminate a tribe's rights, he pointed out, something that all sides in the case agree didn't happen.

"There were illegal transactions 200 years ago," he told the court.

The justices appeared divided on the issue, posing tough questions to the city and the tribe, and to the state of New York and the Department of Justice. The state is backing Sherrill while the Bush administration has sided with the tribe.

Justice Stephen Breyer wasn't embracing the view that history has worked against the tribe. He said the city can't assume that the tribe has lost all of its rights simply because nearly 200 years have passed since the tribe regained control of the land in question.

"They can't come in and eject people," he said of the tribe. "That of course reflects the passage of time. But for the city or state to tax the land doesn't affect the expectation."

Justice Antonin Scalia, on the other hand, was concerned that the tribe's reassertion of power would wreak havoc on taxes, regulation and law enforcement. He suggested that the tribe waited too long to make its case.

"What you're asking the court to do is to sanction a very odd checkerboard system of jurisdiction," he told Smith. "This is a terrible situation as far as government is concerned."

The issue of time was raised by other members of the court as well. Justice Sandra Day O'Connor pressed the city and the state to explain how the tribe's rights were extinguished.

"Is sovereignty something the tribe can lose by inaction over time?" she wondered.

Early on during the hearing, Justice Ruth Bader Ginsburg wanted to know what impacts the city and the state face. Later, New York's Solicitor General Caitlin J. Halligan told the court that the tribe, in an 1838 treaty with the U.S., lost its sovereignty by agreeing to move to Kansas.

"It's very serious," she said, "because it does concern whether the tribe can unilaterally regain sovereignty over a large tract of land."

Malcolm L. Stewart, an assistant solicitor general at the Department of Justice, said the city's attempt to impose property taxes on the tribe was "adding insult to injury." He said Congress never terminated the Oneida reservation.

A split panel of the 2nd Circuit Court of Appeals arrived at the same conclusion in July 2003. The majority said the 1794 Treaty of Canandaigua "remains in force" and that subsequent dealings did not divest the tribe of the reservation.

A ruling from the Supreme Court is expected later this year. Chief Justice William H. Rehnquist did not attend the hearing yesterday due to his ongoing treatment for thyroid cancer. He intends to participate in the adjudication of the case, however, the court said in a statement last Friday.

Tribes across the nation are paying close attention to the case because it could affect their attempts to reclaim land they lost. Some are asserting their presence far from their current reservations and, in some instances, in other states.

New York Gov. George Pataki (R) has agreed to allow two tribes from Wisconsin and one from Oklahoma to reclaim land in the state. He also settled with Cayuga Nation, a New York-based tribe that has been repurchasing land based on the Oneida Nation precedent. That case is on hold pending a Supreme Court decision.

Relevant Documents:
Briefs | Docket Sheet No. 03-855 | 1794 Treaty of Canandaigua

Relevant Links:
Oneida Nation -
NARF-NCAI Tribal Supreme Court Project -

Decision in Oneida Indian Nation v. City of Sherrill:
Majority Opinion | Van Graafeiland Dissent

Decision in Cayuga Indian Nation v. Village of Union Springs:
Decision | Order (April 23, 2004)