Federal District Court Opinions

ONEIDA v. STATE OF N.Y., (N.D.N.Y. 1986) 649 F. Supp. 420
ONEIDA INDIAN NATION OF NEW YORK, et al., Plaintiffs, v.
STATE OF NEW YORK, et al., Defendants. ONEIDA INDIAN
NATION OF WISCONSIN, et al., Plaintiffs, v. The STATE OF
NEW YORK, et al., Defendants. Nos. 78-CV-104, 79-CV-798.
United States District Court, N.D. New York. November 19,
1986. As Amended December 10, 1986. West Page 421

Native American Rights Fund, Washington, D.C., for
plaintiff Oneida Indian Nation of Wisconsin; Arlinda
Locklear, Francis Skenadore, Oneida, Wis., of counsel.

Daan Braveman, Gary T. Kelder, Syracuse, N.Y., for
plaintiff Oneida of the Thames Band.

Bertram Hirsch, Floral Park, N.Y., for Oneida Indian Nation
of New York.

Indian Law Resources Center, Washington, D.C., for
plaintiff-intervenors, The Houdenosaunee and certain
Constituent Nations; Robert Coulter, Curtis Berkey, of
counsel.

Goodwin Proctor & Hoar, Boston, Mass., Hiscock & Barclay,
Syracuse, N.Y., Sherman & Sterling, Huber Lawrence & Abell,
New York City, Robert Abrams, Atty. Gen., State of N.Y.,
Albany, N Y, for defendants; Allan van Gestel, Jeffrey C.
Bates, Boston, Mass., Richard Hughes, Syracuse, N.Y.,
Arnold Bauman, David Marks, Howard Schmertz, New York City,
David Roberts, Asst. Atty. Gen., Albany, N.Y., of counsel.

MEMORANDUM-DECISION & ORDER

McCURN, District Judge.

Plaintiffs and plaintiff-intervenors in the present actions
are the descendants and successors-in-interest to the
Oneida Indian Nation (Oneidas). They claim title to and the
right to possess approximately six million acres of land in
central New York. Plaintiffs base their claim on aboriginal
title confirmed by United States treaty. The land at issue
extends in a fifty to sixty mile wide strip from the
Canadian border to the Pennsylvania border. The Oneidas
sold the land in question to New York State in two
treaties, the Treaty of Fort West Page 422 Herkimer in
1785 and the Treaty of Fort Schuyler in 1788. Both treaties
were concluded before the United States Constitution[fn1]
and the Indian Trade and Intercourse Act (Nonintercourse
Act)[fn2] were enacted while the Articles of Confederation
were in effect. Plaintiffs claim that the 1785 and 1788
treaties with New York are invalid under the Proclamation
of 1783, and the Treaty of Fort Stanwix in 1784 between the
United States government and the Six Nations Iroquois
Confederacy.[fn3]

Defendants’ motions to dismiss are presently before the
court on remand from the Second Circuit. In the Fall of
1984, the court held an evidentiary hearing on the meaning
of the Articles of Confederation and the treaties at issue
pursuant to the Second Circuit’s instructions in Oneida
Indian Nation of New York v. State of New York, 691 F.2d
1070 (2d Cir. 1982). After carefully considering the
evidence submitted in connection with the evidentiary
hearing, including the testimony and reports of the
parties’ experts, primary and secondary source
documentation, the history of the period, the parties’
arguments, and the relevant case law, the court grants
defendants’ motions.

BACKGROUND

Plaintiffs in 78-CV-104 are the Oneida Indian Nation of
New York and several of its members. They claim to be the
direct matrilineal descendants of the aboriginal Oneida
Indian Nation. The New York Oneidas filed their complaint
on March 3, 1978, against New York State; the State Thruway
Authority; various state agencies, departments, and
officials; and a proposed defendant class. An amended
complaint was filed on July 3, 1980. Plaintiffs in
78-CV-104 have not moved to certify the defendant class.

Plaintiffs in 79-CV-798 are the Oneida Indian Nation of
Wisconsin and the Oneida of the Thames Band, a Canadian
tribe. They also claim to be the direct
successors-in-interest to the original Oneidas. The
complaint in 79-CV-798 was filed on December 5, 1979,
against a proposed defendant class, New York State, various
state agencies and officials, the counties and
municipalities within the claim area, several businesses,
and numerous individual landowners. On March 4, 1980, the
court certified a defendant class consisting of all persons
who claim an interest in any portion of the subject land
described in plaintiffs’ complaint, with the exception of
individual Oneida Indians and persons who occupy the land
as a principal place of residence to the extent of the
residence and two surrounding acres. Oneida Indian Nation
of Wisconsin v. State of New York, 85 F.R.D. 701 (N.D.N.Y.
1980). The court estimates that the defendant class
includes approximately 60,000 individuals, businesses, and
governmental entities. In 1984, the Houdenosaunee, also
known as the Six Nations Iroquois Confederacy, intervened
as plaintiffs. Oneida Indian Nation of Wisconsin v. State
of New York, 732 F.2d 261 (2d Cir. 1984). On February 3,
1985, the Thames Band filed an amended complaint aligning
their claims with the Houdenosaunee’s claims.

Plaintiffs in both actions contend that the United States
government guaranteed the Oneidas possession of their land
in the Proclamation of September 22, 1783, and the Treaty
of Fort Stanwix in 1784. They argue that the 1783
Proclamation and the Fort Stanwix Treaty were valid
exercises of the central government’s authority under West
Page 423 the Articles of Confederation and/or the
government’s “external sovereignty” powers. According to
plaintiffs, the Treaty of Fort Herkimer in 1785 and the
Treaty of Fort Schuyler in 1788 between the Oneidas and New
York State are void because the central government did not
consent to the transfer of Oneida land to New York.

Plaintiffs seek a declaration that they are the owners of
and have the right to possess the land in question.[fn4]
They also demand possession of the land claimed, the fair
rental value of the land for the period of dispossession,
costs, and attorneys’ fees. In addition, plaintiffs in
78-CV-104 claim interest on the fair market rental value,
the tolls that the New York Thruway has collected for
passage over Oneida land during plaintiffs’ dispossession,
and a declaration of plaintiffs’ hunting and fishing rights
under the 1788 Treaty if the Treaty is not void.

By Memorandum-Decision and Order dated July 24, 1981, and
amended on September 10, 1981, the court granted
defendants’ motions to dismiss in both actions. The court
held that plaintiffs had standing to challenge the 1785 and
1788 Treaties, the action did not present a nonjusticiable
political question, and the Eleventh Amendment did not bar
plaintiffs’ actions. However, the court held that
plaintiffs failed to state a claim upon which relief could
be granted because under the Articles of Confederation, the
states had not effectively delegated to the central
government their authority to extinguish Indian title
within the states’ respective boundaries. Consequently,
Congress did not have the authority to forbid the states
from forming treaties to extinguish title to Indian land
within the states’ borders. The court also found that New
York’s conduct did not create a constructive trust, the
court could not inquire into the justness of the state’s
actions, and the Indians did not retain any rights
protected under the Nonintercourse Act even if the 1788
Treaty created a perpetual lease. Oneida Indian Nation of
New York v. State of New York, 520 F. Supp. 1278 (N.D.N.Y.
1981).

The Second Circuit affirmed in part and reversed in part.
It agreed with this court’s determination on standing,
justiciability, the Eleventh Amendment, and plaintiffs’
rights under the Nonintercourse Act. However, the Second
Circuit remanded the present actions with instructions to
hold an evidentiary hearing on the meaning of the Articles
of Confederation and the treaties at issue. Oneida Indian
Nation of New York, 691 F.2d 1070.

Pursuant to the Second Circuit’s instructions, this court
formulated the following issues for reconsideration at the
evidentiary hearing:

(a) Whether Article IX cl. 1 of the Articles of
Confederation included the power to make treaties with
Indian tribes, and whether the Fort Stanwix Treaty was a
valid exercise of those powers and was therefore binding
on New York State. See 691 F.2d at 1086-91.

(b) Whether the Article IX cl. 1 powers of Congress are
limited by the qualified power of Congress under cl. 4, to
manage Indian affairs. See 691 F.2d at 1091-92.

(c) Whether the Fort Stanwix Treaty of 1784 precluded New
York State from unilaterally extinguishing Indian title to
tribal land located within its borders. See 691 F.2d at
1092-93.

(d) Whether the Proclamation of 1783 was authorized by
Article IX, cl. 4, and whether it was meant to protect the
lands of all non-assimilated Indians, or merely those
Indians upon lands outside state borders. See 691 F.2d at
1093-95. West Page 424

Oneida Indian Nation of New York, Nos. 78-CV-104, 79-CV-798
at 4-5 (N.D.N.Y. Oct. 10, 1983) (Prehearing Order).

The evidentiary hearing was held from September 19, 1984,
through October 11, 1984. The parties presented historians,
political scientists, and an anthropologist as experts on
the confederal period and Indian relations. In addition to
their hearing testimony, the experts submitted reports
supported by primary and secondary sources. Defendants’
motions to dismiss are again ready for determination. The
following constitutes the court’s decision.

DISCUSSION

In Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 558-59, 8
L.Ed. 483 (1832), Chief Justice John Marshall left
unanswered the question of whether the individual states
had the power to extinguish Indian title during the
confederal period. The present motions require the court to
answer this question. The court’s inquiry begins by
examining the unique and often troubling legal relationship
between the United States and the Indian nations within its
borders.

A. The Doctrine of Discovery

Plaintiffs’ claim to the land is based on aboriginal
title. Aboriginal title is governed by the Doctrine of
Discovery, a legal fiction which the Supreme Court
developed in the early 1800s. The Court created the
Doctrine of Discovery to reflect European policy toward the
American Indians and to explain the discovering nations and
the native Americans’ legal rights to native land. See e.g.
Worcester, 6 Pet. 515, 31 U.S. 515; Johnson v. McIntosh, 21
U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823). The doctrine
provides that the “discovering nations held fee title to
(the natives’) lands, subject to the Indians’ right of
occupancy and use. As a consequence, no one could purchase
Indian land or otherwise terminate aboriginal title without
the consent of the sovereign.” County of Oneida v. Oneida
Indian Nation, 470 U.S. 226, 234, 105 S.Ct. 1245, 1251, 84
L.Ed.2d 169 (1985). See Oneida Indian Nation of New York
State v. County of Oneida, 414 U.S. 661, 667, 94 S.Ct. 772,
777, 39 L.Ed.2d 73 (1974). In McIntosh, Chief Justice
Marshall explained:

On the discovery of this immense continent, the great
nations of Europe were eager to appropriate to themselves
so much of it as they could respectively acquire. . . .
But as they were all in pursuit of nearly the same object,
it was necessary, in order to avoid conflicting
settlements, and consequent war with each other, to
establish a principle, which all should acknowledge as the
law by which the right of acquisition, which they all
asserted, should be regulated, as between themselves. This
principle was, that discovery gave title to the government
by whose subject, or by whose authority, it was made,
against all other European governments, which title might
be consummated by possession. . . . Those relations
which were to exist between the discoverer and the
natives, were to be regulated by themselves. The rights
thus acquired being exclusive, no other power could
interpose between them.

In the establishment of these relations, the rights of
the original inhabitants were, in no instance, entirely
disregarded; but were, necessarily, to a considerable
extent, impaired. They were admitted to be the rightful
occupants of the soil, with a legal as well as a just
claim to retain possession of it, and to use it according
to their own discretion; but their rights to complete
sovereignty, as independent nations, were necessarily
diminished and their power to dispose of the soil, at
their own will, to whomever they pleased, was denied by
the original fundamental principle, that discovery gave
exclusive title to those who made it. While the different
nations of Europe respected the right of the natives, as
occupants, they asserted the ultimate dominion to be in
themselves; and claimed and exercised, as a consequence of
this ultimate dominion, a power to grant the West Page
425 soil, while yet in possession of the natives. These
grants have been understood by all, to convey a title to
the grantees subject only to the Indian right of
occupancy.

McIntosh, 8 Wheat. at 572-74, 21 U.S. at 572-74.

Under the Doctrine of Discovery the discovering nation, in
the present actions Great Britain, had fee title to Indian
land which was good against all other discovering nations.
The Indian tribes had the right to occupy and use the land.
This right is generally known as aboriginal or Indian
title. The tribe’s right of occupancy could only be
extinguished by the sovereign’s purchase or conquest.

The right to acquire Indian land once Indian title has
been extinguished is called the right of preemption.
Generally, the rights of extinguishment and preemption are
joined. However, they are separate powers and need not be
held by the same entity. Fletcher v. Peck, 10 U.S. (6
Cranch) 87, 3 L.Ed. 162 (1810). See Oneida Indian Nation of
New York State, 414 U.S. at 667, 94 S.Ct. at 777.

Before the American Revolution Great Britain, as the
sovereign, held the right to extinguish Indian title and
the right of preemption. Initially, Great Britain allowed
the individual colonies to purchase Indian land and
extinguish Indian title within their charter limits.
However, widespread encroachment on Indian land,
mismanagement of Indian trade, and hostilities with the
French created the need for a centralized Indian policy,
particularly for acquiring Indian land. Horseman, Ex. 1, p.
1.[fn5] On October 7, 1763, Great Britain issued a
proclamation which prohibited the colonies from purchasing
Indian land or trading with the Indians without the Crown’s
authority. The Crown appointed two “Superintendents of
Indian Affairs” to regulate dealings with the Indians and
prohibited white settlement west of the Appalachians.
Proclamation of 1763 (Oct. 7, 1763), reprinted in 3 W.
Washburn, The American Indian and the United States 2135-39
(1973), Ex. D2, X I. Great Britain thus retained and
exercised both the right to extinguish Indian title and the
right of preemption just before the colonies declared
their independence.

During the pre-revolutionary period, the colonies were
expanding their settlements and trying to consolidate their
charter land claims. They saw the Proclamation of 1763 and
Great Britain’s centralization of Indian affairs as an
attempt to give favored traders and land speculators
western lands to the colonies’ detriment. Like the Stamp
Act and Quartering Act, the colonists considered the
Proclamation of 1763 an unwarranted intrusion into colonial
affairs. Great Britain’s centralization of Indian affairs
eventually became one of the grievances which led to the
American Revolution. Ketchum, Ex. D2, p. 1; Tr. pp.
0521-22, 0556-57.

B. Source of Congress’ Authority During the Confederal
Period

Before the Articles of Confederation were ratified,
Congress acted as a revolutionary government. As such, it
does not fit neatly into the legal theories of sovereignty.
Although it is generally believed that Great Britain’s
sovereign powers passed to the individual colonies when the
colonies declared their independence, the Supreme Court has
recognized that certain external sovereign powers vested in
the central government.

As a result of the separation from Great Britain by the
colonies, acting as a unit, the powers of external
sovereignty passed from the Crown not to the colonies
severally, but to the colonies in their collective and
corporate capacity as the United States of America. Even
before the Declaration, the colonies were a unit West
Page 426 in foreign affairs, acting through a common
agency — namely, the Continental Congress, composed
of delegates from the thirteen colonies. That agency
exercised the powers of war and peace, raised an army,
created a navy, and finally adopted the Declaration of
Independence.

United States v. Curtiss-Wright Export Corp., 299 U.S. 304,
316-17, 57 S.Ct. 216, 219, 81 L.Ed. 255 (1936).

During the pre-confederal period, and even before the
states had enacted their individual constitutions, Congress
controlled foreign affairs and matters of war and peace. As
noted above, the United States in Congress assembled
declared independence from Great Britain, made alliances
with foreign nations, and established an army and navy.
Congress also dealt with the Indian nations, at least in
matters concerning war and peace. Horsman, Ex. 1, pp. 7-8.
It established Indian departments to handle Indian affairs
and to advise Congress. At the beginning of the conflict
with Great Britain, Congress sent the Six Nations Iroquois
Confederacy a request to remain neutral. Speech to the Six
Nations, II Journals of the Continental Congress 177, 182
(July 13, 1775), Ex. 2, X 10. See also Resolution to Seek
Indian Neutrality, X Journals of the Continental Congress
110-11 (Feb. 2, 1778), Ex. 2, X 17. When the Senecas,
Mohawks, Onondagas, and Cayugas allied with Great Britain,
congress enlisted the Oneida and Tuscaroras’ help and waged
war against the hostile tribes.

The fact that Congress had certain powers of external
sovereignty during the pre-confederal period, whether
directly from Great Britain or indirectly from the
colonies’ implied consent, does not mean, however, that fee
title to Indian land and the right to extinguish Indian
title passed to congress. The Supreme Court has stated in
dicta:

It is true the United States never held fee title to
Indian lands in the original States as it did to almost
all the rest of the continental United States and that fee
title to Indian lands in these States, or the pre-emptive
right to purchase from the Indians, was in the State…

[. . .]