Oneida Indian Nation of New York v. State of N.Y., s. 1145

• Decision Date: 31 October 1988
• Docket Number: 1144 and 1146,D,Nos. 1145,s. 1145
• Citation: 860 F.2d 1145
• Parties: The ONEIDA INDIAN NATION OF NEW YORK, the Oneida Indian Nation of Wisconsin, Oneida of the Thames Band, et al., Plaintiffs-Appellants, The Houdenosaunee, the Oneida Nation, the Onondaga Nation, the Mohawk Nation, the Seneca Nation, and the Tuscarora Nation, Plaintiffs-Intervenors-Appellants, v. STATE OF NEW YORK and Various State Agencies; Twelve New York Counties, Valentine Ryan, Individually and as Class Representative; St. Regis Paper Company, Individually and as Class Representative; Georgia Pacific Corporation, Individually and as Class Representative; and New York State Electric and Gas Corporation, Defendants-Appellees. ockets 86-9052, 86-9072 and 86-9074.
• Court: U.S. Court of Appeals — Second Circuit

Page 1145

860 F.2d 1145

The ONEIDA INDIAN NATION OF NEW YORK, the Oneida Indian Nation of Wisconsin, Oneida of the Thames Band, et al., Plaintiffs-Appellants The Houdenosaunee, the Oneida Nation, the Onondaga Nation the Mohawk Nation, the Seneca Nation, and the Tuscarora Nation Plaintiffs-Intervenors-Appellants, v. STATE OF NEW YORK and Various State Agencies; Twelve New York Counties, Valentine Ryan, Individually and as Class Representative; St. Regis Paper Company, Individually and as Class Representative; Georgia Pacific Corporation Individually and as Class Representative; and New York State Electric and Gas Corporation, Defendants-Appellees.

Nos. 1145, 1144 and 1146, Dockets 86-9052, 86-9072 and 86-9074.

United States Court of Appeals, Second Circuit.

Argued June 2, 1987.

Decided Oct. 31, 1988.

Arlinda Locklear, Washington, D.C. (Richard Dauphinais, Native American Rights Fund, Washington, D.C., Francis Skenadore, Oneida Tribal Law Office, Oneida, Wis., Norman Dorsen, N.Y.U. Law School, New York City, on the brief, for plaintiff-appellant Oneida Indian Nation of Wisconsin, Daan Braveman, Gary Kelder, Syracuse Univ. Law School, Syracuse, N.Y., on the brief, for plaintiff-appellant Oneida of the Thames Band, Bertram Hirsch, Floral Park, N.Y., on the brief, for plaintiff-appellant Oneida Indian Nation of New York), for plaintiffs-appellants.

Curtis G. Berkey, Washington, D.C. (Robert T. Coulter, Indian Law Resource Center, Washington, D.C., on the brief), for plaintiffs-intervenors-appellants Houdenosaunee & constituent nations.

Allan Van Gestel, Boston, Mass. (Jeffrey C. Bates, Goodwin, Procter & Hoar, Boston, Mass., on the brief, for defendants-appellees twelve New York Counties & Ryan, Richard K. Hughes, Hiscock & Barclay, Syracuse, N.Y., on the brief, for defendants-appellees St. Regis Paper Co. & Georgia Pacific Corp., Robert Abrams, Atty. Gen., Peter H. Schiff, Albany, N.Y., on the brief, for defendants-appellees State of N.Y. & various State Agencies; Howard M. Schmertz, Huber, Lawrence & Abell, New York City, on the brief, for defendant-appellee New York State Elec. & Gas Corp.), for defendants-appellees.

Before NEWMAN, KEARSE and WINTER, Circuit Judges.

JON O. NEWMAN, Circuit Judge:

This appeal requires consideration of the validity of two treaties under which New York purchased more than five million acres of land from the Oneida Indians in 1785 and 1788. The appeal is unusual because it requires a federal court, perhaps for the first time, to determine whether actions of a state violated the Articles of Confederation. These matters arise on an appeal by the Oneidas and other Indians from a judgment of the District Court for the Northern District of New York (Neal P. McCurn, Judge) dismissing their suit against the State of New York and others for recovery of the land and damages. The District Court dismissed the suit for failure to state a claim on which relief can be granted, after conducting an extensive hearing into the historical background of the relevant documents, as required by this Court's prior decision, Oneida Indian Nation of New York v. State of New York, 691 F.2d 1070 (2d Cir.1982) (Oneida I ). We agree with Judge McCurn that the treaties under which the land was acquired were not invalid under the Articles of Confederation, the Proclamation of 1783, or the 1784 Treaty of Fort Stanwix. We therefore affirm the judgment of the District Court.

Background

This litigation began in 1978. Suit was filed by the Oneida Indian Nation of New York and some of its members. 78 CV-104 (N.D.N.Y.). Defendants were the State of New York and several state agencies and state officials. A similar suit was filed in 1979 by the Oneida Indian Nation of Wisconsin and the Oneida of the Thames Band, a Canadian tribe located in Ontario. 79-CV-798 (N.D.N.Y.). The second suit named as defendants the State of New York, several state agencies and officials, and several counties, municipalities, and businesses located in the area that is the subject of the litigation. In 79-CV-798, a defendant class was certified consisting of approximately 60,000 individuals, businesses, and governmental entities and officials. Because of a tribal dispute over recognition of a governing body of the Oneidas of New York, the first suit remained somewhat inactive, and the litigation continued in the second suit, although both suits are the subject of the dispositive rulings now pending on appeal. Intervention in the second suit was subsequently granted to the Houdenosaunee, a confederacy of the six Iroquois Nations, and five of its constituent nations, the Oneida, Onondaga, Mohawk, Seneca, and Tuscarora Nations. See Oneida Indian Nation of Wisconsin v. State of New York, 732 F.2d 259 (2d Cir.1984). The sixth nation in the confederacy is the Cayuga Nation.

The subject of the litigation is a swath of land in central New York 50 to 60 miles wide, extending from New York's southern border with Pennsylvania to its northern border with Canada. The land comprises more than five and one-half million acres and encompasses portions of thirteen New York counties. New York acquired the land as a result of two treaties it concluded with the Oneidas--the Treaty of Fort Herkimer, signed on June 23, 1785, and the Treaty of Fort Schuyler, signed on September 22, 1788. By the first treaty New York acquired 300,000 acres for $11,500 in goods and cash. By the second treaty New York acquired approximately five million acres for $5,500 in goods and cash, plus a payment of $600 per year. The annual payment obligation was capitalized and discharged by a lump-sum payment in 1839. N.Y. Laws ch. 518 (1839).

The plaintiffs challenged the validity of the two transactions on a number of grounds, of which only three have survived the prior appeal to concern us on the pending appeal: lack of consent by the Confederal Congress, alleged to be required by the Articles of Confederation, conflict with the 1784 Treaty of Fort Stanwix between the United States and the Six Nations, and conflict with the Proclamation of 1783, issued by the Confederal Congress. The District Court originally dismissed all of the claims for legal insufficiency in 1981. Oneida Indian Nation of New York v. State of New York, 520 F.Supp. 1278 (N.D.N.Y.1981).

On the first appeal we upheld much of what the District Court had decided. Oneida I. We upheld the rejection of New York's defenses of Eleventh Amendment immunity, id., 691 F.2d at 1079-80, non-justiciability, id. at 1080-83, and untimeliness, id. at 1083-84. With respect to justiciability, we upheld the power of a federal court to determine in general Indian land rights based on Indian treaty or other federal law but did not focus specifically on issues of justiciability that might arise in the course of considering the merits of the particular claims advanced by the plaintiffs. With respect to timeliness, we rejected the applicability of state statutes of limitations to the plaintiffs' federal law claims and also ruled that a time bar based on federal law was not applicable since the tribes should not be precluded in circumstances where the United States would be entitled to sue; the United States could sue for damages until December 31, 1982, on claims that accrued prior to July 18, 1966, see 28 U.S.C. Sec. 2415(a), (b) (1982 & Supp. IV 1986), and could sue without any time limit to establish title or possession, id. Sec. 2415(c). Though our prior opinion contained no discussion of a defense of laches, it stated in its conclusion that this defense was being rejected. Oneida I, 691 F.2d at 1097. ¹

Turning to the merits of the plaintiffs' claims, the panel in Oneida I upheld the District Court's rejection of the claim that the lands had been acquired by fraud, id. at 1096, and the claim that the 1788 transaction was a lease, creating a right of reversion that could not lawfully be acquired without congressional consent after enactment of the first Nonintercourse Act, Act of July 22, 1790, 1 Stat. 137 (1845) (current version codified at 25 U.S.C. Sec. 177 (1982). With these matters cleared away, the panel then focused on the issues at the heart of the current controversy. Ultimately the panel concluded that the claims based on the Articles of Confederation, the Treaty of Fort Stanwix, and the Proclamation of 1783 could not be resolved on a motion to dismiss under Fed.R.Civ.P. 12(b)(6) "without affording the plaintiffs an evidentiary hearing in order to clarify the meaning and context of [contemporaneous] statements relied on and the weight to be given to them." Oneida I, 691 F.2d at 1086. The case was remanded for such a hearing.

On remand, the District Court assembled a voluminous record, detailed examination of which has occasioned the delay in issuing this opinion. In live testimony, videotaped depositions, and written statements, several of the nation's foremost historians of the confederal period gave their views about the background and meaning of the key documents at issue in the litigation. Their statements were accompanied by hundreds of supporting documents, including the correspondence of the principal participants. In a scholarly and comprehensive opinion, Judge McCurn adhered to his previous decision, dismissing as legally insufficient all of the plaintiffs' remaining claims. Oneida Indian Nation v. State of New York, 649 F.Supp. 420 (N.D.N.Y.1986). We will set forth Judge McCurn's rulings with respect to each of the principal points at issue in the course of our consideration of the merits.

Discussion

I. The Rights Concerning Indian Lands

Under the so-called Doctrine of Discovery, long recognized by the Supreme Court, Worcester v. Georgia, 6 Pet. (31 U.S.) 515, 543, 8 L.Ed. 483 (1832); Johnson v. McIntosh, 8 Wheat. (21 U.S.) 543, 573-74, 5 L.Ed. 681 (1823), the discovering nations held fee title to Indian land, subject to the Indians' right of occupancy and use. County of Oneida v. Oneida Indian...