691 F.2d 1070 (2nd Cir. 1982), 81-7626, Oneida Indian Nation of New York v. State of N. Y.

Docket Nº:81-7626, 81-7628, 81-7638 and 81-7646
Citation:691 F.2d 1070
Party Name:ONEIDA INDIAN NATION OF NEW YORK, et al., Plaintiffs-Appellants, Cross- Appellees, v. STATE OF NEW YORK, Counties of Broome, Chenango, Cortland, Herkimer, Jefferson, Lewis, Madison, Oswego, Oneida, Onondaga, St. Lawrence and Tioga, Individually and as Class Representatives, Defendants-Appellees, Cross-Appellants. ONEIDA INDIAN NATION OF WISCONSIN a
Case Date:October 04, 1982
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1070

691 F.2d 1070 (2nd Cir. 1982)

ONEIDA INDIAN NATION OF NEW YORK, et al.,

Plaintiffs-Appellants, Cross- Appellees,

v.

STATE OF NEW YORK, Counties of Broome, Chenango, Cortland,

Herkimer, Jefferson, Lewis, Madison, Oswego, Oneida,

Onondaga, St. Lawrence and Tioga, Individually and as Class

Representatives, Defendants-Appellees, Cross-Appellants.

ONEIDA INDIAN NATION OF WISCONSIN and Oneida of the Thames

Band, Plaintiffs- Appellants, Cross-Appellees,

v.

STATE OF NEW YORK, Counties of Broome, Chenango, Cortland,

Herkimer, Jefferson, Lewis, Madison, Oneida, Onondaga,

Oswego, St. Lawrence and Tioga, New York, and Valentine

Ryan, New York Electric & Gas Corp., St. Regis Paper Co.,

and Georgia Pacific Corp., Individually and as Class

Representatives, Defendants-Appellees, Cross-Appellants.

Nos. 683, 710 and 815 to 818, Dockets 81-7616, 81-7618,

81-7626, 81-7628, 81-7638 and 81-7646

United States Court of Appeals, Second Circuit

October 4, 1982

Argued April 28, 1982.

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Arlinda Locklear, Washington, D.C. (Lawrence Aschenbrenner, Native American Rights Fund, Washington, D.C., Francis Skenandore, Oneida, Wis., Norman Dorsen, New York City, of counsel), for Oneida Indian Nation of Wisconsin and Oneida of the Thames Band.

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

Jeremiah Jochnowitz, Asst. Sol. Gen., Albany, N.Y. (Robert Abrams, Atty. Gen., State of N.Y., Shirley Adelson Siegel, Sol. Gen., Franklin K. Breselor, Asst. Atty. Gen., Albany, N.Y., of counsel), for State of N.Y.

Allan van Gestel, Boston, Mass. (Jeffrey C. Bates, Goodwin, Procter & Hoar, Boston, Mass., of counsel), for the 12 New York Counties and Valentine Ryan, Individually and as Class Representatives.

Howard M. Schmertz, New York City (Huber, Magill, Lawrence & Farrell, New York City, of counsel), for New York State Electric & Gas Corp.

Richard D. Davidson, Syracuse, N.Y. (Hiscock, Lee, Rogers, Henley & Barclay, Syracuse, N.Y., of counsel), for St. Regis Paper Co. and Georgia Pacific Corp., Individually and as Class Representatives.

Robert T. Coulter, Washington, D.C. (Curtis G. Berkey, Indian Law Resource Center, Washington, D.C., of counsel), for amicus curiae The Houdenosaunee.

Before MANSFIELD and KEARSE, Circuit Judges, CABRANES, District Judge. [*] , [**]

MANSFIELD, Circuit Judge:

For the first time in Indian land claim litigation a federal court is asked to invalidate land purchases made by a state from Indian tribes prior to the adoption of the United States Constitution, allegedly in violation of the Articles of Confederation. The plaintiffs in this consolidated action are the direct successors in interest to the Oneida Indian Nation ("Oneida"), whose members since time immemorial had prior to the American Revolution occupied land in central New York State totalling approximately six million acres. They seek to invalidate two "state" treaties between New York and the Oneidas concluded in 1785 (Fort Herkimer Treaty) and 1788 (Fort Schuyler Treaty) which purported to transfer over five million acres of Oneida land to New York State. 1 The district court, Neal P. McCurn, Judge, dismissed the action for failure to state a claim upon which relief may be granted. We affirm in part, reverse in part, and remand for additional proceedings in order fully to develop the complex factual and legal issues underlying certain claims raised by the Oneidas.

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The Oneidas raise two broad claims. First, they contend that their aboriginal title to their land, confirmed and guaranteed by federal treaties and pronouncements pursuant to powers delegated to the federal government under the Articles of Confederation, was never extinguished since the state treaties were improperly concluded without federal consent. Therefore, they claim, the state treaties are void and the Oneidas' original right of occupancy is intact. Alternatively, they maintain that even if valid the state treaties, either by their terms or by virtue of New York's fraudulent conduct during their negotiation, reserved to the Oneidas an interest in the subject lands which subsequently came under the protection of the Nonintercourse Act, 25 U.S.C. Sec. 177, 2 enacted in 1790 pursuant to Congress' authority under Article I, Sec. 8, clause 3 of the newly adopted Constitution of the United States. 3 They contend that their subsequent dispossession of the land occurred improperly without federal consent, and therefore their aboriginal title was never validly extinguished. For relief, they seek, inter alia, recovery of the subject land, fair rental value for the entire period of dispossession, damages for fraudulent misrepresentation, and a declaration of hunting and fishing rights.

In an exhaustive opinion published at 520 F.Supp. 1278 (N.D.N.Y.1981), Judge McCurn found that there was jurisdiction under 28 U.S.C. Secs. 1331 and 1362, and held that the claims were not barred by either the nonjusticiability doctrine or by the Eleventh Amendment. He dismissed the suit, however, for failure to state a claim upon which relief might be granted, F.R.Civ.P. 12(b)(6), holding that internal inconsistencies and ambiguities within the Articles of Confederation, specifically Article IX, clause 4, preclude their being construed as delegating to the federal government the exclusive authority to extinguish aboriginal title to land within a state's borders and that federal consent therefore was not required to validate the New York treaties. He also rejected the alternative claims that the New York treaties reserved to the Oneidas an interest in the land that was subsequently extinguished in violation of the Nonintercourse Act.

BACKGROUND

In reviewing the background and history underlying these claims for purposes of determining whether the dismissal must be upheld, we accept as true all material factual allegations and construe the complaint in favor of the complaining party. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-102, 2 L.Ed.2d 80 (1957). At the outset a brief explication of the legal concepts that govern title in Indian land is necessary to understand the nature of the claims and to place in proper perspective the contested historical facts advanced by the parties.

The rights of American Indians to the land they inhabited since time immemorial are governed by the doctrine of "discovery" and related legal principles first elaborated in a series of decisions by the Marshall Court. Mitchel v. United States, 34 U.S. (9 Pet.) 711, 9 L.Ed. 283 (1835); Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.Ed. 483 (1832); Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 3 L.Ed. 162 (1810). Accord, Oneida Indian Nation v. County of Oneida, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). The Supreme

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Court recently summarized these principles in Oneida Indian Nation, supra, 414 U.S. at 667, 94 S.Ct. at 777:

"although fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign--first the discovering European nation and later the original States and the United States--a right of occupancy in the Indian tribes was nevertheless recognized. That right, sometimes called Indian title and good against all but the sovereign, could be terminated only by sovereign act."

This right of occupancy which the Indians retain until validly extinguished has been variously termed "aboriginal title, unrecognized title, original Indian title, or simply Indian title." Clinton & Hotopp, "Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims," 31 Me.L.Rev. 17, 20 (1979). It must be distinguished from the concept of fee title of the discoverer. The two types of interest--fee title of the discoverer and Indian title of the native inhabitants--relate to different concerns. The discovery doctrine, which vests fee title in the discovering sovereign, was designed to regulate the competing claims of European nations to the right to purchase Indian land: the discovering nation vested with fee title is given the exclusive right against all others to acquire the right to occupancy to a particular parcel of land from the inhabiting Indians. See Berman, "The Concept of Aboriginal Rights in the Early Legal History of the United States," 27 Buffalo L.Rev. 637, 655 (1978). Thus the concept of fee title in the context of Indian lands does not amount to absolute ownership, but rather is used interchangeably with "right of preemption," or the preemptive right over all others to purchase the Indian title or right of occupancy from the inhabitants. Oneida Indian Nation, supra, 414 U.S. at 670, 94 S.Ct. at 778.

The discovery doctrine, however, does not determine the relationship between the holder of the fee title and the inhabiting Indians, since the mere possession of the fee title does not thereby entitle the holder to any possessory interest in the land vis-a-vis the Indians. Rather, possession is governed by the concept of Indian title, which recognizes the Indians as "the rightful occupants of the soil, with a legal as well as just claim to retain possession." Johnson v. McIntosh, supra, 21 U.S. (8 Wheat.) at 574. Until Indian title is extinguished by sovereign act, any holder of the fee title or right of preemption, either through discovery or a grant from or succession to the discovering sovereign, remains "subject ... to the Indian right of occupancy," id., and the Indians may not be ejected. See, e.g., Clark v...

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