"First, it is all but certain that the once mighty Eastern land claims based on the Non-Intercourse Act violations of the late 18th century are all but dead. There may come a scenario where the Second Circuit sitting en banc or perhaps the First or Third Circuits issue an opinion declining to apply the Sherrill defenses to a NIA claim, but it’s doubtful. And even if that happened, Supreme Court review is virtually guaranteed (both because of the resulting split in authority and because of the state interests involved), with the predictable 5-4 result (assuming the tribal interests can persuade even that many to dissent).

Land claims and other claims based on treaty rights seem to have been successful for the time being, but time will tell on those claims.

Frankly, a new strategy is needed, and perhaps it’s time to review why the Eastern land claims were relatively successful in the first place. I believe it’s the federal government’s fear of United States liability for failing to prevent the fraudulent land sales and illegal tax foreclosures of Indian lands. The entire face of Indian land claim statutory law is based on this fear, including the 1982 statute passed to eliminate the statute of limitations for Indian land claims (28 U.S.C. 2415(a)). Maybe it’s time to remind Congress and the DOJ of the government’s potential liability, though the Cobell settlement, the American Indian farmer and African-American farmer settlements indicate Congress could really care less about liability. One thing in which the Rehnquist/Roberts Courts have been incredibly successful is preserving and bolstering federal and state (and even tribal) sovereign immunity.

Second, the NCAI/NARF Supreme Court Project seems to be at a crossroads. There’s no doubt that the strategies and organization brought by the Project now available to tribal interests in high-stakes litigation are impressive, but the results simply are not there. The only successes seem to be below the radar, in persuading tribal interests not to appeal bad decisions, for example. But those “bad decisions” are unlikely to be reviewed anyway, as the San Francisco Peaks decision demonstrates."

Get the Story:
Commentary on the Oneida Land Claim Debacle in the Second Circuit (Turtle Talk 8/10)

2nd Circuit Decision:
Oneida Nation v. Oneida County/Madison County (August 9, 2010)

Sherrill v. Oneida Nation Decision:
Syllabus | Opinion [Ginsburg] | Concurrence [Souter] | Dissent [Stevens]

Related Stories:
2nd Circuit rules against Oneida Nation in long running land case (8/9)