United States v. Oneida Nation of New York, 5-76.

• Decision Date: 17 May 1978
• Docket Number: No. 5-76.,5-76.
• Parties: UNITED STATES v. The ONEIDA NATION OF NEW YORK et al.
• Court: U.S. Claims Court

576 F.2d 870

UNITED STATES v. The ONEIDA NATION OF NEW YORK et al.

No. 5-76.

United States Court of Claims.

May 17, 1978.

A. Donald Mileur, Washington, D.C., with whom was Asst. Atty. Gen. James W. Moorman, Washington, D.C., for appellant; M. Edward Bander, Washington, D.C., of counsel.

Marvin S. Chapman, Chicago, Ill., for appellees; Dean A. Dickie and Aaron, Aaron, Schimberg & Hess, Chicago, Ill., of counsel.

Before DAVIS, NICHOLS and KUNZIG, Judges.

ON APPEAL FROM THE INDIAN CLAIMS COMMISSION

DAVIS, Judge.

This is an unusual case, harking back to the preconstitutional period of our country's history, under the "fair and honorable dealings" clause of the Indian Claims Commission Act, 25 U.S.C. § 70a(5) (1970).¹ Claims one and two of a suit filed in the Indian Claims Commission by the appellee, Oneida Nation of New York, alleged that that Indian entity did not receive a fair price for lands it "sold," through unfair pressure and deceit, to the State of New York in 1785 and 1788, and that the Federal Government is responsible under the "fair and honorable dealings" clause for any shortfall in consideration because it did not live up to its fiduciary relationship to help and protect the Oneidas in their land relationships with others, including New York. The first claim concerns a land "cession" from the Oneida Nation to New York of some 293,600 acres under the Treaty of Fort Herkimer of June 28, 1785 (between New York and the Oneidas), while the second involves the "cession" of the balance of the lands belonging to the Oneidas in New York (with the exception of some 239,618.55 acres reserved for their use) under the Treaty of Fort Schuyler of September 22, 1788 (also between the State and the Indians).

In the decisions now before us, the Indian Claims Commission, with one dissent, determined, after trial, that (1) the Oneidas were unfairly treated by New York in these two treaties; (2) the United States then had a fiduciary relationship toward the Oneidas with relation to their lands; (3) the Federal Government (i. e. the Congress) knew, or should have known, about the 1785 and 1788 transactions, before and after they were consummated; (4) with respect to these 1785 and 1788 transactions, the United States did not satisfy its obligations resulting from its fiduciary relationship toward the Oneidas; and (5) because of this breach, the Federal Government is liable under the "fair and honorable dealings" clause for the amounts the Oneidas should have received from New York in 1785 and 1788, if they had been given fair compensation. 20 Ind.Cl.Comm. 337 (1969); 26 Ind.Cl.Comm. 583 (1971); 37 Ind.Cl.Comm. 522 (1976).² The Government has appealed. It does not contest the determination or findings on New York's treatment of the Oneidas, or the finding that the federal Congress was or should have been aware of the transactions, but it objects to each of the other three rulings.

I.

We deal at the outset with a very belated request, from the Indian side, that we postpone decision in this case indefinitely because of some possible effect of our determination on litigation which may conceivably be brought to declare the Oneidas still the owners of the lands involved here. On January 19, 1978, less than two weeks before oral argument, appellees, through their counsel of record, moved to postpone argument and hold in abeyance consideration and determination of the appeal. This was denied by order of January 26, 1978, without prejudice to appellees' urging upon the panel designated to hear the appeal that the court refrain from ruling on the extinguishment of the Oneidas' title to these lands. Four days before argument, a "pro se motion to postpone argument" was lodged by two representatives (not members of our bar) of the Oneida Tribe of Indians of Wisconsin, one of several appellees;³ this document asserted that Marvin S. Chapman, record attorney for all appellees, had very recently (after our order of January 26, 1978) been "suspended" by the Wisconsin Oneidas as its attorney in this matter, and asked for postponement in order, inter alia, to assess the impact of this case on other actions seeking the return of Oneida lands. Oral argument was nevertheless had at the appointed time but the representatives who had filed the "pro se motion" were allowed to address the court briefly and were given permission to file, post-argument, a memorandum supporting their request for postponement of decision. Such a document was then filed. (Both the appellant and Mr. Chapman have responded to this memorandum.)⁴ The core of the Wisconsin Oneidas' desire for delay is that they fear that any decision we render may have an adverse impact on suits which they would like to see brought against New York to compel return of (or award of the current value for) the Oneida lands transferred to the States from 1785 to 1846 (see footnote 2, supra) on the ground that those "sales" were all illegal, or were not transfers of title, and the Indians still retain their aboriginal title.

We refuse to postpone decision. This suit has been pending for almost 27 years, ever since it was filed with the Commission in August 1951. There have been three separate decisions by the Commission (in 1969, 1971, and 1976) on the two pre-1790 claims involved in this appeal, and two separate trials. The last decision of the Commission (which we are asked to review) was rendered over two years ago, on March 19, 1976. The case was fully briefed and set for argument on a day certain (early in February 1978) before there was any intimation to the court, a short while prior to argument, that a postponement was desired because of other possible litigation founded on the claim that the Oneidas still own the New York land. But this is a matter which has been in the wind for a very substantial period. It is quite clear that certain portions of the Oneida Nation have for some years considered suit against New York or its subordinate units for return or current value of Oneida lands in that area. See, e. g., Oneida Indian Nation of New York v. County of Oneida, New York, 414 U.S. 661, 94 S.Ct. 772, 39 L.Ed.2d 73 (1974). We are informed that in 1966 and 1967 Oneidas, including the Wisconsin Oneidas, retained a New York law firm for the prosecution of Oneida claims against New York with respect to the former Oneida lands in that state. All appellees, including the Wisconsin Oneidas, were thus on notice of the possibility of this type of litigation against the State. At the same time, appellees, again including the Wisconsin Oneidas, were also on notice of the present litigation under the Indian Claims Commission Act; Mr. Chapman, the attorney of record and their contract attorney for about a quarter of a century, informs us that he has provided them with copies of the pleadings and briefs and memoranda filed with the Commission and this court. There is no doubt that the Wisconsin Oneidas and the other appellees had full opportunity, long before this eleventh hour, to drop the present claims or to ask the Commission to suspend the proceedings. Moreover, the anticipated action against New York had not been brought at the time this opinion was adopted and it is improbable that, if brought, it would cover these pre-1790 claims which unlike the others are not governed by the Trade and Intercourse Act of 1790 (see footnote 2, supra).

We must conclude, as we did with the similar problem in Western Shoshone Legal Defense and Education Assn. v. United States, 531 F.2d 495, 209 Ct.Cl. 43, cert. denied, 429 U.S. 885, 97 S.Ct. 236, 50 L.Ed.2d 166 (1976), that it is not unfair to the Wisconsin Oneidas to reject their belated request for postponement, and that on the contrary it would be unfair to the Government, to the due administration of the Indian Claims Commission Act, to the Commission, to this court, and perhaps to other appellees, to delay decision to an indefinite date which may turn out to be the Greek kalends. See, also, Sioux Tribe v. United States, 64 F.Supp. 312, 336, 105 Ct.Cl. 725, 811, vacated and remanded, 329 U.S. 685, 67 S.Ct. 364, 91 L.Ed. 602 (1946) (for consideration of possible claims under Indian Claims Commission Act), prior judgment affirmed and re-entered, 78 F.Supp. 793, 112 Ct.Cl. 50 (1948), cert. denied, 337 U.S. 908, 69 S.Ct. 1046, 93 L.Ed. 1720 (1949). The request is far too late and too nebulous for us to accede to it.⁵

II.

It is not contested on this appeal that New York treated the Oneidas unfairly in inducing them to sell land-interests to the state in 1785 and 1788, and that the Indians did not voluntarily sell their lands at that time. The facts found by the Commission are these: In the 1785 treaty negotiations with New York at Fort Herkimer, the Oneidas initially were unwilling to sell any land. To satisfy Governor Clinton, who was trying to purchase land for New York, the Indians offered to sell a tract between the Delaware and Susquehanna rivers. Governor Clinton told the Indians that a much larger tract in the southern part of the Oneida territory was desired. On June 25, 1785, Petrus the Minister, the Oneidas' main spokesman, informed the Governor that they could not sell the tract because it was important hunting land. The following day Governor Clinton accused the Oneidas of acting in bad faith and told them that the century-long friendship with New York State would end if they did not deal honestly. He also told them that, if they did not sell the land, he would not protect them from the incursions of white settlers. That night, New York commissioners held private conferences with various Oneidas, and on June 27, 1785, Petrus the Minister announced that he would no longer participate in the council, since Governor Clinton did not trust him. Peter the Quarter Master, the Oneidas' new spokesman, then announced that they would sell part of the land desired by the Governor. The latter told Peter the Quarter Master that he would not pay...