Thanksgiving is always a good time for non-Natives to reflect on the colonial history of the United States and particularly the lands that have been granted by tribes in some cases and, in others, taken forcibly or through patently unfair negotiations. And this term, a case pending before the Supreme Court raises these very issues. As the current Court term churns along and conferences and arguments are conducted and orders are issued, one case from last term--Madison County v. Oneida Indian Nation of New York—remains stalled. The case was distributed on January 30 for a February 15 conference, and thereafter the Solicitor General was invited to present the views of the United States, which he has not yet done. The main issues in the case are (1) whether the Oneida Indian Reservation in New York has been diminished or disestablished (despite a 1985 Supreme Court holding that New York’s 1795 land purchase from the Tribe was void because it had not been federally ratified) (2) and whether the Tribe’s sovereign immunity bars foreclosure of its land for nonpayment of taxes.
In the Counties’ brief in support of the petition for certiorari, they claim that a holding in the Tribe’s favor on the disestablishment question would contravene the “justifiable expectations” of non-Indians in the area, who have come to expect to be exposed to little if any tribal presence or power. As I explained in a recent article, the Supreme Court routinely makes similar assumptions in favor of non-Indian residents and past land purchasers in tribal jurisdiction and reservation diminishment cases. See generally Ann E. Tweedy, “Unjustifiable Expectations: Laying to Rest Allotment-Era Settlers,” 36 Seattle U. L. Rev. 129 (2012). There are numerous problems with this type of assumption, however, and it can be hoped that the Solicitor General will raise some of them in his response.
One problem is that the Supreme Court does not evaluate these presumed non-Indian expectations in historical context to ensure that were in fact justifiable, or, in other words, rooted in justice. As I explain in “Unjustifiable Expectations,” which presents my original historical research as to Sioux Nation lands in South Dakota, in many cases, tribes were deprived of the lands unfairly (and illegally by constitutional takings standards) and surrounding settlers knew of these injustices when they purchased tribal lands. Another related problem is that the Supreme Court does not address whether Indians and tribes have—or had—justifiable expectations with respect to their own land rights, which should be weighed in the analysis. See, e.g., Ann E. Tweedy, “How Allotment-Era Literature Can Inform Current Controversies About Tribal Jurisdiction and Reservation Diminishment,” U. Toronto Q. vol. 82, No. 4, 923-948, at 944 (Fall 2013, forthcoming).
Although the Oneidas were deprived of their lands through illegal purchases earlier than many other tribes, there is ample information about the injustices in their land transactions both with private speculators and the State of New York. See generally Anthony Wonderley, “’Good Peter’s Narrative of Several Transactions Respecting Indian Lands’: An Oneida View of Dispossession. 1785-1788,” New York History, vol. 84, No. 3, 237-273 (Summer 2003). This information sheds light on both the justifiability of any non-Indian settlers’ expectations that they would enjoy the Oneida lands free of Oneida presence and influence and the Oneida Nation’s justifiable expectations with respect to these same lands and its continuing interest in them.
The Wonderley article presents the story of the Oneida’s dispossession in the late 1700s primarily from the perspective of an Oneida Chief Warrior who was called Good Peter by whites. Good Peter recounted the events to a federal official named Thomas Pickering in 1792. The article is well worth reading in full, but here are a few highlights.
After the Revolutionary War, the Oneidas returned to their homeland in 1783-84. Although they were “impoverished and greatly reduced by war, disease, and hunger,” they fully anticipated support and help from the United States and New York State as they were among the few Iroquois who had fought on the U.S. side in the war. Wonderley at 242. Unfortunately, their faith was misplaced. New York’s economic recovery plan after the War was based in part on acquisition of Iroquois lands, which it could then use as collateral as well as eventually sell at a profit or give to veterans in lieu of pay. In fact, Governor Clinton, who was Governor of New York from 1777 to 1795 is said to have “long cherished the hope of Oneida Removal.” Wonderley at 245. A State Commission to obtain Iroquois lands was dispatched in 1784 to Iroquois territory, but this commission failed with respect to Oneida lands because the Oneidas had been forewarned. Immediately, however, speculators began moving in, some of whom falsely represented themselves as agents of the State. The methods of an early group led by one John Harper included plying Indians with alcohol in order to get them to sign away their lands. Wonderley at 246.
New York responded to news of the speculators’ efforts by redoubling its own efforts. Despite repeated public refusals to sell in the treaty minutes in June 1785, the Oneidas agreed through a spokesperson to sell 300,000 acres for moneys and goods worth $11,500 the following morning. According to the Oneida account, New York obtained the cession over the objection of some Oneida chiefs by promising that this would be the last purchase of Oneida lands by anyone and by threatening to withdraw protection from the Oneidas against the State’s own “unruly and avaricious citizens” if the Oneidas did not sell. Wonderley, at 249-250. The same threat was made again in 1788. During both 1785 and 1788, many Oneidas were literally starving, a fact which New York took full advantage of, even rescheduling one treaty conference to ensure that the Oneidas would be desperate from hunger during the negotiations.
Image from Yale University Art Gallery
In the late 1780s, another group of speculators led by John Livingston, claiming to represent New York, began attempting to gain rights to Oneida and other Iroquois lands through a 999-year lease, and they succeeded in this goal of leasing virtually the entire Oneida territory in 1788. One questionable tactic they used was to pay trusted leaders and confidantes among the Oneidas to support their plans. Wonderley at 258. After the lease had been signed but apparently before the Oneidas received the promised consideration, the Governor of New York learned of the plan and appeared ready to come to the aid of the Oneidas to invalidate the lease—promising that he would “recover your lost country, & to raise it out of the waters”--but in truth New York only wanted Oneida lands for itself. As Good Peter explained “We had expected from the Governor’s love to us, that his intention was to recover our lost and drowned country and restore it to us.” Wonderley at 259.
New York invalidated the 999-year lease through its legislature in 1788, and, without notifying the Oneidas that this had been done, immediately began pressuring the Oneida to sell its land to New York. Not only did this 1788 “agreement” as written down by New York contain considerably more land than the Oneidas had actually agreed to, Wonderley at 267-68, it also framed the written agreement as a sale, although the Oneidas believed—and stated in the treaty conference—that they were agreeing to a lease. Wonderley at 272. Good Peter explained the discrepancies this way:
“We Indians are unwise: And our want of wisdom is owing to our want of knowledge in the ways of white people. White people say to us—‘This Measure will be for your good.’ And we have always been accustomed to obey this voice . . . as we verily thought our white brothers meant good to us: and hence we have been deceived with respect to our lands.” Wonderley at 271.
This perspective of the Oneida leader Good Peter is of course a far cry from the claims of the Counties in their brief regarding justifiable expectations. Relying primarily on a version of Felix Cohen’s Handbook of Federal Indian Law that, after Cohen had resigned from the agency, was rewritten by termination-era Department of Interior officials in order to maximize support for the federal plan to terminate the trust relationship between tribal governments and the United States, the Counties suggest in their brief that the Oneidas simply ceded their lands in the State of New York by treaty and removed to Wisconsin in the late 1700s and that the few remaining Oneidas were fully assimilated into the white culture surrounding them. Counties Brief, 2010 WL 4973153 at *50. However, this is a simplistic, ahistorical view. The fact that these cessions were replete with unfair dealings and that the terms of the 1788 cession as written were considerably different than those Oneidas had actually agreed to should be part of any analysis of justifiable expectations.
In short, either the Supreme Court should stop relying on presumed justifiable expectations of non-Indians in analyses of whether reservations have been diminished or disestablished and in analyses of tribal jurisdiction over non-members or it should begin the hard work of undertaking a deep, historical analysis of such expectations—and their justifiability—on both sides. It is long overdue to include tribal expectations in that analysis.