One nation, indivisible: American "Indian country" in the wake of city of Sherrill V. Oneida Indian nation.

• Author: Sunderlin, Jennifer R.

1. INTRODUCTION

   In an age where patriotism and national unity are stressed in this proud "melting pot," it can be difficult to remember that the United States was once entirely subject to the dominion of native tribes. (1) Since the time when manifest destiny pushed European Americans westward, the land controlled by American Indians has diminished to a mere sliver of what it once was, as various instruments set aside reservations, allotments, and individual parcels along the countryside that was to be settled by non-Indians. Today, many such holdings exist as relatively small but separate sovereigns within this one nation. (2)

   "Indian country" is broadly defined as "land within the limits of any Indian reservation [or allotment] under the jurisdiction of the United States," (3) a definition which has been evolving since the colonies were first settled by Europeans. (4) Originally, during the colonial period, the term "Indian country" referred to the separate territory that was occupied by the Indian tribes. (5) It was later used in the Trade and Intercourse Act to define the purely geographic scope of Indian dominion. (6) Practically speaking, however, the term "Indian country" in present day politics refers to land which, though subject to federal jurisdiction, is recognized as existing under the sovereign authority of tribal government and is exempt from state and municipal taxation. (7) This includes "formal and informal reservations, dependent Indian communities, and Indian allotments." (8) Further, it has been firmly established that the power to modify the status of land determined to be an Indian Reservation lies only with Congress through the Commerce Clause in Article I, Section 8 of the United States Constitution. (9)

   Since the middle of the last century, tribes across the nation have brought actions to reclaim and preserve lands set aside for tribal use by the United States government or its colonial predecessor. (10) These actions have ranged from petitions for the ejectment of non-Indian residents and reversion of the land to Indian control, (11) to petitions for the payment of monetary damages for the occupation of Indian land in violation of eighteenth century treaties (12) and for the recognition of the sovereign status of ancestral lands purchased on the open market after 200 years under non-Indian jurisdiction. (13)

   In the recent decision of City of Sherrill v. Oneida Indian Nation, which addressed the taxable status of Indian-owned land located within the tribe's original reservation, (14) the United States Supreme Court has changed the legal landscape for the acquisition of tribal lands as Indian country. In its attempt to balance the interests of both state and tribal governments, the Court has forgotten the role of Congress in properly dealing with Indian affairs. (15) In essence, the Court has afforded itself the ability to expand or diminish Indian lands in a manner that may contradict both legislative intent as well as the Court's own intent in ruling as it did. (16)

   In Part II, this Note will outline the specific history behind the

   Oneida land claim, which concerns the status of once-reserved Indian land that 200 years ago was sold to non-Indians, only recently to be repurchased by the Oneidas. (17) Part III puts forth that the logic of the decision in City of Sherrill is inconsistent with judicial precedent and intent, inasmuch as it would theoretically allow for an undivided mass of land purchased on the open market to be regarded as Indian country because it would not pose as significant of a burden on the administration of state regulatory authority. Part IV will further assert that the logic of the Supreme Court in City of Sherrill is inconsistent with the current policy regarding Indian sovereignty as embodied by the Dawes Act of 1887, (18) the federal provision relating to acquisition of Indian lands as codified in 25 U.S.C. [section] 465, (19) and section 383 of the New York Executive Law passed pursuant to the Indian Gaming Regulatory Act. (20) Further, Part V will discuss how the remedy recommended to the Oneida Indian Nation by the majority--to effectually create Indian country in the contested lands through an appeal to the Secretary of the Interior, whereby the lands would be taken into trust for the use and benefit of the Oneida Indian Nation (21)--certainly poses no less a burden to the outlying community. As such, the decision of the Supreme Court, as suggested in the dissent of Justice Stevens, unreasonably encroaches on the sole congressional authority to expand or diminish the size of native lands regarded as Indian country. (22)

2. THE HISTORY OF THE ONEIDA LAND CLAIM

   On March 29, 2005, the U.S. Supreme Court decided City of Sherrill v. Oneida Indian Nation, holding that land bought in fee on the open market by an Indian tribe could not be regarded as "Indian country" so as to remove the land from local regulatory jurisdiction. (23) Furthermore, the decision specified that such lands should not be considered Indian country especially because the ratification of a "checkerboard of state and tribal jurisdiction ... would 'seriously burde[n] the administration of state and local governments' and would adversely affect landowners neighboring the tribal patches" and that such burden, after the Oneida's 200 year absence from regulatory control, could not be justified against the interests of the current local residents. (24)

   This decision came after two lower courts determined that the contested Oneida land was unquestionably Indian country. (25) The District Court in the Northern District of New York found that the Oneida Indian Nation provided "undisputed evidence that the 1794 Treaty of Canandaigua confirmed and guaranteed" the Oneida's tribal reservation, which was partially situated in the present city of Sherrill. (26) In so holding, the District Court then confirmed that the Indian status of the contested Oneida land had not been disestablished by any prior instrument between the federal government and the tribe, (27) that it fit well within the statutory definition of Indian country, and that it was henceforth exempt from state and local taxation. (28)

   The Second Circuit affirmed the decision of the District Court and further added that the land at issue was Indian country because it was located on the original reservation of Oneida land, that there was no express congressional action or intent to disestablish said reservation, and that the tribe did not need to demonstrate its "continued existence" on that land to claim it as Indian country. (29) On certiorari to the Supreme Court, the Indian country status of the Oneida land was not debated, meaning that it was not an issue to be reviewed on appeal. (30) As such, the Supreme Court did not factually deny the Indian country status of the Oneida land; however, it did rule to limit the sovereign right to such status. (31)

   The land in question was purchased by the Oneida Indian Nation on the open market between 1997 and 1998 and consists of separate parcels located within the City of Sherrill. (32) The Oneida Indian Nation, one of six tribes comprising the once-powerful Iroquois Confederacy, claimed an "aboriginal homeland [of nearly] six million acres in ... central New York" at the time of the American Revolution. (33) After the Revolution, the settlement of New York was pushed westward from the Hudson River, which pressured the State to make agreements with the Indian Tribes. (34) Subsequently, the Oneidas ceded all of their lands to the State of New York for nominal monetary consideration through the 1788 Treaty of Fort Schuyler, leaving a reservation of only 300,000 acres over which the tribe remained sovereign. (35)

   This reservation was preserved after the 1790 Indian Trade and Intercourse Act through the Treaty of Canandaigua in 1794. (36) The treaty ensured federal protection of the lands as reserved in the Treaty of Fort Schuyler for the "free use and enjoyment" by the Oneidas. (37) The Trade and Intercourse Act intended to protect Indian lands from wrongful alienation or exploitation by mandating federal approval of all land transactions involving tribal holdings. (38) This was the first decree by the fledgling nation, in furtherance of the Commerce Clause, which reiterated the principle that only Congress could regulate commerce with the Indian tribes. (39) Commerce in this context was intended to include the transfers of tribal lands, as well as the establishment or disestablishment of Indian reservations. (40)

   Thus, Indian country, as statutorily defined, (41) was created in the remaining 300,000 acres, which included the City of Sherrill, and was preserved through a treaty made by the federal government, the Treaty of Canandaigua. (42) Nonetheless, in violation of the Trade and Intercourse Act, a majority of the Oneidas' reservation lands were purchased by the State of New York throughout the mid-1800s and subsequently developed by the new settlers. (43) Although the state instruments by which the majority of the Oneida lands were transferred were invalid under federal law and technically failed to dissolve the reservation status of those lands, possession remained with the subsequent non-Indian purchasers of these reservation lands for two centuries. (44)

   The Oneidas of New York first sought damages for portions of these illegally transferred properties through proceedings initiated before the Indian Claims Commission in 1951. (45) A series of claims were asserted before the commission assessed the fiduciary duty of the United States to compensate the Oneidas for these wrongful land transfers. (46) However, after a drawn out attempt to sway the federal government to grant damages, the Oneidas gradually abandoned this avenue to instead pursue land claims, beginning in 1970, against local governments in the State of New York. (47)

   As all of these cases proved futile in achieving the goal...