Oneida Indian Nation of New York State v. Oneida County, s. 545

• Citation: 719 F.2d 525
• Decision Date: 29 September 1983
• Docket Number: Nos. 545,546 and 643,D,s. 545
• Parties: The ONEIDA INDIAN NATION OF NEW YORK STATE, a/k/a The Oneida Indian Nation of New York, a/k/a The Oneida Indians of New York; The Oneida Indian Nation of Wisconsin, a/k/a The Oneida Tribe of Indians of Wisconsin, Inc.; and The Oneida of the Thames Band Council, Plaintiffs-Appellants-Cross-Appellees, v. The COUNTY OF ONEIDA, New York and The County of Madison, New York, Defendants-Third Party Plaintiffs-Appellees-Cross-Appellants, v. STATE OF NEW YORK, Third Party Defendant-Appellant. ockets 82-7436, 82-7486 and 82-7526.
• Court: United States Courts of Appeals. United States Court of Appeals (2nd Circuit)

Page 525

719 F.2d 525

The ONEIDA INDIAN NATION OF NEW YORK STATE, a/k/a The Oneida

Indian Nation of New York, a/k/a The Oneida Indians of New

York; The Oneida Indian Nation of Wisconsin, a/k/a The

Oneida Tribe of Indians of Wisconsin, Inc.; and The Oneida

of the Thames Band Council, Plaintiffs-Appellants-Cross-Appellees, v. The COUNTY OF ONEIDA, New York and The County of Madison, New York, Defendants-Third Party Plaintiffs-Appellees-Cross-Appellants, v. STATE OF NEW YORK, Third Party Defendant-Appellant.

Nos. 545, 546 and 643, Dockets 82-7436, 82-7486 and 82-7526.

United States Court of Appeals Second Circuit.

Argued Jan. 18, 1983.

Decided Sept. 29, 1983.

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. of the State of N.Y., Peter H. Schiff, Acting Atty. in Chief Appeals and Opinions, Albany, N.Y., of counsel), for State of N.Y.

Allan van Gestel, Boston, Mass. (Jeffrey C. Bates, Laura L. Carroll, Goodwin, Procter & Hoar, Boston, Mass., of counsel), for County of Oneida, N.Y. and County of Madison, N.Y.

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

Before LUMBARD, MANSFIELD and MESKILL, Circuit Judges.

LUMBARD, Circuit Judge:

All three parties appeal from the judgment of the Northern District of New York, Edmund J. Port, Judge. The defendants, Counties of Oneida and Madison, New York, appeal from Judge Port's decision holding them liable for wrongful possession of plaintiffs' land. 434 F.Supp. 527 (N.D.N.Y.1977). Plaintiffs Oneida Indian Nation of New York State, Oneida Indian Nation of Wisconsin, and Oneida of the Thames Band Council (collectively the "Oneidas"), as well as the Counties appeal from Judge Port's decision of October 5, 1981, on damages. Finally, third party defendant State of New York appeals from Judge Port's ruling of May 5, 1982, that it must indemnify the Counties for any damages assessed. We affirm each of Judge Port's three rulings, but remand for further proceedings on the calculation of damages.

The three plaintiffs in this case are the descendants of the Oneida Indian Nation which inhabited central New York for After the War, the United States rewarded the Oneidas in the Treaty of Fort Stanwix, 7 Stat. 15 (October 22, 1784), by securing them "in the possession of the lands on which they are settled." Later, two additional treaties further secured the Oneidas in the possession of their land. See Treaty at Fort Harmar, 7 Stat. 33 (January 9, 1789); Treaty with Six Nations, 7 Stat. 44 (November 11, 1794). The settlers of the new nation, however, in their constant fever to expand soon invaded the Indians' territory. Thus, under increasing pressure from its white residents, the State of New York in 1788 purported to purchase most of the Oneidas' land--nearly five million acres. ³ The Oneidas retained about 300,000 acres near Oneida Lake.

                many years until shortly after the Revolutionary War.  The Oneidas were part of the Six Nations or Iroquois, the most powerful tribe in the Northeast. 1   Their land extended from the Pennsylvania border north to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. 2   During the Revolutionary War, the Oneidas were active allies of the colonists against the British.  Their support prevented the Iroquois from taking a unified stand against the colonists--an important achievement for the confederated states
                

As the pressure of new settlements everywhere continued to increase, the Indians became restive. In recognition of the frequently inequitable land purchases and to prevent Indian retaliation, the newly created federal government took an active role in protecting and securing the Indians in the possession of their land. President Washington and his Secretary of War, Henry Knox, encouraged Congress to enact legislation which recognized "that the Indian tribes possess the right of the soil of all lands within their limits, respectively, and that they are not to be divested thereof, but in consequence of fair and bonafide purchases, made under the authority, or with the express approbation, of the United States." American State Papers, I Indian Affairs 53 (1834). Accordingly, Congress passed the Trade and Intercourse Act of 1790, Ch. 33, 1 Stat. 137 (hereinafter "1790 Act") which provided:

[t]hat no person shall be permitted to carry on any trade or intercourse with the Indian tribes, without a [federal] license ... [and] [t]hat no sale of land made by Indians ... shall be valid to any person or persons, or to any state ... unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

Id. at 137-38. ⁴

The 1790 Act, however, was primarily declarative. It provided few enforcement mechanisms for protecting federal or tribal interest. Because it did little to stem the increasing illegal occupation of Indian lands, Congress in 1793 enacted a second Trade and Intercourse Act that added criminal penalties for illegally occupying Indian lands and authorized the President to remove trespassers from the land. Trade and Intercourse Act of 1793, Ch. 19, Sec. 8, 1 Stat. 329, 330-31 (hereinafter "1793 Act"). The 1793 Act also provided that "informants" could enforce the section imposing fines on Despite these statutory prohibitions, the State of New York attempted in 1795 to obtain Indian lands without the requisite federal approval. Throughout the ensuing months, the federal authorities repeatedly urged New York State Governor Clinton and his successor Governor John Jay to seek and secure the appointment of federal commissioners before the State negotiated any purchase of Indian lands. See 434 F.Supp. at 534-35. Despite this, the State sought an agreement with the Oneidas during the summer of 1795, over the express remonstrance of the federal authorities. See id. at 534. These negotiations led to the sale on September 15, 1795, in Albany, in contravention of the 1793 Act, of approximately 100,000 acres of the Oneidas' reservation. As the district court noted, however, the circumstances surrounding the Oneidas' assent to the purchase were fraught with irregularities. Id. 535. First, the Oneidas virtually never signed treaties outside their aboriginal land, yet the treaty was signed in Albany outside their aboriginal land boundaries. Second, normally the Oneidas' treaties were agreed to by unanimous consensus of the tribe; here, however, powers of attorney were given to individuals, none of whom were chiefs, to negotiate the transaction. Third, the State purchased the land for approximately fifty cents per acre. Within two years, the State in turn sold much of the land to white settlers for about $3.53 per acre.

violators and collect one-half of the fine assessed.

Social and economic forces, including poverty, famine, alcoholism, and pressures on the Oneidas to move West resulted in the alienation of virtually all of their remaining New York acreage. Between 1795 and 1846, twenty-five more treaties between the State and the Oneidas were consummated, enabling the State to divest the Oneidas of all but a few hundred acres. Only two of these treaties (concerning land not here in question) were made with federal supervision and approval. ⁵ Furthermore, the State passed a statute that divided up the tribal landholdings and gave individual Indians a right to sell.

New York's abuse of the Oneidas was not accomplished without protest. Shortly after the 1784, 1787, and 1788 land purchases, the Oneidas contacted the federal government in protest over what they perceived as improper, deceitful, and overreaching conduct by the State. See American State Papers, I Indian Affairs 139 (1834). Their protest continued, especially between 1840 and 1875, and between 1909 and 1965. See 434 F.Supp. at 536.

Finally, in 1970 the Oneidas brought suit in the Northern District of New York claiming that the 1795 cession of land violated the Nonintercourse Act, and that the land was unconscionably purchased for an inadequate price. The complaint sought damages for the fair rental value of 871.92 acres which were part of the 1795 land transfer, for the period from January 1, 1968 to December 31, 1969. The district court on November 4, 1971, dismissed the complaint ruling that it asserted only a state law claim. Our affirmance over one judge's dissent, 464 F.2d 916, 918 (2d Cir.1972), was unanimously reversed by the Supreme Court which held:

Tribal rights [are] entitled to the protection of federal law, and with respect to Indian title based on aboriginal possession, the 'power of Congress ... is supreme.'

* * *

* * *

The rudimentary propositions that Indian title is a matter of federal law and can be extinguished only with federal consent apply in all of the States, including the original 13.

414 U.S. 661, 669-70, 94 S.Ct. 772, 778-79, 39 L.Ed.2d 73 (1974) (footnotes and citation omitted).

On remand, Judge Port trifurcated the proceedings, dividing the case into separate

trials on the issues of liability, damages, and indemnity. First, Judge Port held that the State's 1795 purchase violated the 1793 Act. He later assessed the Counties $16,694 in damages plus interest. In addition, Judge Port over the State's principal objection on eleventh amendment grounds held that the State must indemnify the Counties for all damages assessed.

I. LIABILITY

Plaintiffs claim two bases for a finding of liability in this case: federal common law and the 1793 Nonintercourse Act. ⁶

(A) Federal common...