LEGALIZING, DECOLONIZING, AND MODERNIZING NEW YORK STATE'S INDIAN LAW.

• Author: Porter, Robert B.

The Indian Law, although a part of the scheme of general laws, is but a collection of special statutes relating to the several tribes of Indians remaining in the state. Following this plan an examination has been made of all statutes relating to Indians, and such as were found to be unrepealed but superceded or obsolete have been placed in the schedule for repeal, and those remaining have been added to the law under the article relating to the particular tribe to which they apply.(1)

INTRODUCTION

One of the most vexing problems in Federal Indian Control Law is how to regulate the relationship between the Indian nations and the states. In stark contrast to the federal government's role in Indian affairs, the Constitution makes no provision for the states to exercise authority inside the Indian territory located within their borders. As a result of having territory within a state that the state cannot control, there has long been conflict between the states and the Indian nations, usually revolving around state efforts to exert authority within the Indian territory.(2) These state efforts have been justified primarily on the grounds that either the Indians or the non-Indians located within the Indian territory are engaging in conduct that contravenes state public policy and law. Not surprisingly, these disputes can be intense. But, because states are not burdened by the federal government's trust responsibility to safeguard Indian interests,(3) these conflicts may even be violent and life threatening.(4) As a result of this tortured relationship, the Supreme Court has recognized, that for the Indians, "`the people of the States... are often their deadliest enemies.'"(5)

Perhaps nowhere has this problem had more unique application than in the State of New York.(6) For over 300 years, the colonial and American inhabitants of New York have waged an ongoing battle for control over the Indian lands originally adjacent to, and later located within, the State.(7) The Indian nations most subject to these State assertions of power have been the Haudenosaunee, often referred to as the "People of the Longhouse" or Six Nations Iroquois Confederacy,(8) who are comprised of people from the Mohawk,(9) Oneida,(10) Onondaga,(11) Cayuga,(12) Seneca,(13) and Tuscarora(14) Nations.(15) Originally controlling all of what is now New York State,(16) the Haudenosaunee have lived in their aboriginal territory under their own forms of government since time immemorial.(17)

Unlike most Indian nations that continue to exist within the United States, the Haudenosaunee have been more influenced by the colonizing activities of the State rather than the federal government.(18) New York's colonial government early on entered into its own treaties with the Haudenosaunee and enacted laws designed to carry out its own colonizing objectives.(19) These activities continued when New York became a state,(20) but despite being in violation of Haudenosaunee law, federal law, and the federal treaties with the Haudenosaunee, the federal government during the late eighteenth and early nineteenth centuries was usually unable and unwilling to check these illegal assertions of State power over the Haudenosaunee and their lands. As a result of the federal government's virtual abandonment of its responsibilities over Indian affairs in New York, the State had considerable latitude to colonize the Haudenosaunee and appropriate ownership and control over the remaining Haudenosaunee lands.(21) While the United States from time to time during the nineteenth and twentieth century actually exercised its protective responsibilities on behalf of the Haudenosaunee (usually when the State was acting in a particularly egregious manner), for most of America's history it has been the State government rather than the federal government that has had the dominant role in influencing the Indian nations within New York.

In the course of expanding its authority over the Haudenosaunee during the nineteenth century, New York State, more than any other state in the nation, developed an extensive body of law authorizing and directing its colonizing agenda.(22) Not surprisingly, these laws primarily served State interests, such as authorizing the development of Indian lands and the control over Haudenosaunee governments.(23) But the State's interests also included so-called exercise of "beneficial" legislation designed to promote Haudenosaunee interests--actions akin to the federal government's trust responsibility--that included the allotment of tribal lands to individual Indians, the establishment of schools, and the removal of intruders.(24) These laws, while deemed by State officials as furthering to Haudenosaunee interests, ultimately were part of a broader State agenda to exterminate them as a distinct people.(25)

Despite its extensive legislative activity in dealing with the Haudenosaunee, the State had not been granted authority by the federal government to enact these laws. Nonetheless, federal officials either mistakenly, or delinquently, allowed the State to enact and implement these laws without challenge. As a result, the State's Indian Law,(26) which was originally enacted to serve as the legal infrastructure for implementing the State's nineteenth century assimilationist agenda, gained credence in the eyes of state, federal and even Haudensaunee officials. The lasting effect has been the establishment of a modern State role in Haudenosaunee affairs that is rooted in the colonialism and paternalism of the eighteenth and nineteenth centuries.

During the last thirty years, the United States Supreme Court has become increasingly involved in resolving state-tribal conflicts(27) and in doing so, has developed doctrinal principles by which to evaluate whether assertions of state power in Indian territory are valid under federal law.(28) While it is still an important presumption that states have no authority over Indian affairs, the Court over the years has modified this "bright-line" rule and defined new standards by which to evaluate whether assertions of state power in Indian territory can be sustained as a matter of federal law.(29)

Viewed against the backdrop of these modern Federal Indian Control Law principles, most of the State's Indian Law purporting to regulate and control the Haudenosaunee is invalid.(30) The focus of this article is to defend that proposition and to set forth the justification for why these laws should be repealed and/or reformed. In doing so, Part I will provide some historical background regarding the State's role in Haudenosaunee affairs during the last 225 years, including how the State's Indian Law came into being.(31) Part II will set forth the federal law principles regulating assertions of State power in Indian territory and analyze why the State's Indian laws relating to the Haudenosaunee are invalid in accordance with those principles.(32) In Part III, I will explain some of the implications of retaining illegal Indian laws as a matter of State record.(33) Lastly, I will set forth my recommendation for how New York can reform and modernize its approach for dealing with the Haudenosaunee nations.(34)

My purpose in writing this article is to contribute to the discussion surrounding the assertions of Haudenosaunee sovereignty that have occurred during the last twenty-five years and to provide some much needed clarification as to the State's power to legislate with respect to Haudenosaunee affairs. Today, these assertions have put the State at odds with the Haudenosaunee nations over a variety of conflicts. Currently, the State is being sued for millions of acres of land that it illegally obtained pursuant to non-federally ratified treaties entered into over 200 years ago.(35) It has sought, unsuccessfully, to force Indian businesses to collect State sales taxes from non-Indians who purchase goods within Haudenosaunee territory.(36) And it has assumed a new and powerful role as the gatekeeper on the path to lucrative gaming opportunities for some Haudenosaunee nations.(37) These conflicts, however, have occasionally resulted in violence between the State's law enforcement officers and the Haudenosaunee.(38) As a result, the lives of both the Haudenosaunee and New Yorkers are at risk, as well as millions of dollars of the State and tribal fiscs.

These recent conflicts, as I hope to demonstrate, are all rooted in the State's colonial laws and policies. Because State officials may fail to appreciate the historical context in which contemporary relations with the Haudenosaunee take place, they most likely will also fail to appreciate the false security that is reflected by the State's Indian law. This lack of understanding is a significant contributor to the problems now occurring in State-Haudenosaunee relations and ensures that mutually beneficial solutions will be difficult to achieve. By legalizing, decolonizing, and modernizing New York's law dealing with the Haudenosaunee, the State can take important steps to ensuring that a mutually beneficial relationship can be reestablished for the first time in over 200 years.

1. A BRIEF HISTORY OF NEW YORK'S INVOLVEMENT IN HAUDENOSAUNEE AFFAIRS

   The modern legal and political relationship between the Haudenosaunee and the State is deeply rooted in the events and circumstances associated with the colonization of Haudenosaunee lands by the Dutch and the British in the seventeenth and eighteenth centuries and by the State itself in the nineteenth and twentieth centuries.

   1. Seventeenth and Eighteenth Century European Colonization

      As a result of the relative strength of the Haudenosaunee during the late seventeenth century,(39) the Dutch (and later British) colonial governors early on developed a practice of entering into treaties and agreements with the Haudenosaunee(40) by which to secure the safety of colonial settlements, to define trade relations, and otherwise ensure the alliance of the...