Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985)

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Author: Justice Powell

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Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985)

JUSTICE POWELL delivered the opinion of the Court.*

These cases present the question whether three Tribes of the Oneida Indians may bring a suit for damages for the occupation and use of tribal land allegedly conveyed unlawfully in 1795.

I

The Oneida Indian Nation of New York, the Oneida Indian Nation of Wisconsin, and the Oneida of the Thames Band Council (the Oneidas) instituted this suit in 1970 against the Counties of Oneida and Madison, New York. The Oneidas alleged that their ancestors conveyed 100,000 acres to the State of New York under a 1795 agreement that violated the Trade and Intercourse Act of 1793 (Nonintercourse Act), 1 Stat. 329, and thus that the transaction was void. The Oneidas’ complaint sought damages representing the fair rental value of that part of the land presently owned and occupied by the Counties of Oneida and Madison, for the period January 1, 1968, through December 31, 1969.

The United States District Court for the Northern District of New York initially dismissed the action on the ground that the complaint failed to state a claim arising under the laws of the United States. The United States Court of Appeals for the Second Circuit affirmed. Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (1972). We then granted certiorari and reversed. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) (Oneida I). We held unanimously that, at least for jurisdictional purposes, the Oneidas stated a claim for possession under federal law. Id. at 675. The case was remanded for trial.

On remand, the District Court trifurcated trial of the issues. In the first phase, the court found the counties liable to the Oneidas for wrongful possession of their lands. 434 F.Supp. 527 (1977). In the second phase, it awarded the Oneidas damages in the amount of $16,694, plus interest, representing the fair rental value of the land in question for the 2-year period specified in the complaint. Finally, the District Court held that the State of New York, a third-party defendant brought into the case by the counties, must indemnify the counties for the damages owed to the Oneidas. The Court of Appeals affirmed the trial court’s rulings with respect to liability and indemnification. 719 F.2d 525 (1983). It remanded, however, for further proceedings on the amount of damages. Id. at 542. The counties and the State petitioned for review of these rulings. Recognizing the importance of the Court of Appeals’ decision not only for the Oneidas, but potentially for many eastern Indian land claims, we granted certiorari, 465 U.S. 1099 (1984), to determine whether an Indian tribe may have a live cause of action for a violation of its possessory rights that occurred 175 years ago. We hold that the Court of Appeals correctly so ruled.

II

The respondents in these cases are the direct descendants of members of the Oneida Indian Nation, one of the six nations of the Iroquois, the most powerful Indian Tribe in the Northeast at the time of the American Revolution. See B. Graymont, The Iroquois in the American Revolution (1972) (hereinafter Graymont). From time immemorial to shortly after the Revolution, the Oneidas inhabited what is now central New York State. Their aboriginal land was approximately six million acres, extending from the Pennsylvania border to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. See 434 F.Supp. at 533.

Although most of the Iroquois sided with the British, the Oneidas actively supported the colonists in the Revolution. Ibid.; see also Graymont, supra. This assistance prevented the Iroquois from asserting a united effort against the colonists, and thus the Oneidas’ support was of considerable aid. After the War, the United States recognized the importance of the Oneidas’ role, and in the Treaty of Fort Stanwix, 7 Stat. 15 (Oct. 22, 1784), the National Government promised that the Oneidas would be secure "in the possession of the lands on which they are settled." Within a short period of time, the United States twice reaffirmed this promise, in the Treaties of Fort Harmar, 7 Stat. 33 (Jan. 9, 1789), and of Canandaigua, 7 Stat. 44 (Nov. 11, 1794).{1}

During this period, the State of New York came under increasingly heavy pressure to open the Oneidas’ land for settlement. Consequently, in 1788, the State entered into a "treaty" with the Indians in which it purchased the vast majority of the Oneidas’ land. The Oneidas retained a reservation of about 300,000 acres, an area that, the parties stipulated below, included the land involved in this suit.

In 1790, at the urging of President Washington and Secretary of War Knox, Congress passed the first Indian Trade and Intercourse Act, ch. 33, 1 Stat. 137. See 4 American State Papers, Indian Affairs, Vol. 1, p. 53 (1832); F. Prucha, American Indian Policy in the Formative Years 43-44 (1962). The Act prohibited the conveyance of Indian land except where such conveyances were entered pursuant to the treaty power of the United States.{2} In 1793, Congress passed a stronger, more detailed version of the Act, providing that

no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution . . . [and] in the presence, and with the approbation of the commissioner or commissioners of the United States

appointed to supervise such transactions. 1 Stat. 330, § 8. Unlike the 1790 version, the new statute included criminal penalties for violation of its terms. Ibid.

Despite Congress’ clear policy that no person or entity should purchase Indian land without the acquiescence of the Federal Government, in 1795 the State of New York began negotiations to buy the remainder of the Oneidas’ land. When this fact came to the attention of Secretary of War Pickering, he warned Governor Clinton, and later Governor Jay, that New York was required by the Nonintercourse Act to request the appointment of federal commissioners to supervise any land transaction with the Oneidas. See 434 F.Supp. at 534-535. The State ignored these warnings, and, in the summer of 1795, entered into an agreement with the Oneidas whereby they conveyed virtually all of their remaining land to the State for annual cash payments. Ibid. It is this transaction that is the basis of the Oneidas’ complaint in this case.

The District Court found that the 1795 conveyance did not comply with the requirements of the Nonintercourse Act. Id. at 538-541. In particular, the court stated that

[t]he only finding permitted by the record . . . is that no United States Commissioner or other official of the federal government was present at the . . . transaction.

Id. at 535. The petitioners did not dispute this finding on appeal. Rather, they argued that the Oneidas did not have a federal common law cause of action for this violation. Even if such an action once existed, they contended that the Nonintercourse Act preempted it, and that the Oneidas could not maintain a private cause of action for violations of the Act. Additionally, they maintained that any such cause of action was time-barred or nonjusticiable, that any cause of action under the 1793 Act had abated, and that the United States had ratified the conveyance. The Court of Appeals, with one judge dissenting, rejected these arguments. Petitioners renew these claims here; we also reject them, and affirm the court’s finding of liability.

III

At the outset, we are faced with petitioner counties’ contention that the Oneidas have no right of action for the violation of the 1793 Act. Both the District Court and the Court of Appeals rejected this claim, finding that the Oneidas had the right to sue on two theories: first, a common law right of action for unlawful possession; and second, an implied statutory cause of action under the Nonintercourse Act of 1793. We need not reach the latter question, as we think the Indians’ common law right to sue is firmly established.

A

Federal Common Law

By the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe’s interest in its property and how those interests could be conveyed. It was accepted that Indian nations held "aboriginal title" to lands they had inhabited from time immemorial. See Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947). The "doctrine of discovery" provided, however, that discovering nations held fee title to these lands, subject to the Indians’ right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign.{3} Oneida I, 414 U.S. at 667. See 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, 19-49 (1979).

With the adoption of the Constitution, Indian relations became the exclusive province of federal law. Oneida I, supra, at 670 (citing Worcester v. Georgia, 6 Pet. 515, 561 (1832)).{4} From the first Indian claims presented, this Court recognized the aboriginal rights of the Indians to their lands. The Court spoke of the "unquestioned right" of the Indians to the exclusive possession of their lands, Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), and stated that the Indians’ right of occupancy is "as sacred as the fee simple of the whites." Mitchel v. United States, 9 Pet. 711, 746 (1835). This principle has been reaffirmed consistently. See also Fletcher v. Peck, 6 Cranch 87, 142-143 (1810); Johnson v. McIntosh, 8 Wheat. 543 (1823); Clark v. Smith, 13 Pet.195, 201 (1839); Lattimer v. Poteet, 14 Pet. 4 (1840); Chouteau v. Molony, 16 How. 203 (1854); Holden v. Joy, 17 Wall. 211 (1872). Thus, as we concluded in Oneida I, "the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case." 414 U.S. at 671 (emphasis in original).

Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal common law right to sue to enforce their aboriginal land rights.{5} In Johnson v. McIntosh, supra, the Court declared invalid two private purchases of Indian land that occurred in 1773 and 1775 without the Crown’s consent. Subsequently, in Marsh v. Brooks, 8 How. 223, 232 (1850), it was held:

That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v. McIntosh.

More recently, the Court held that Indians have a common law right of action for an accounting of "all rents, issues and profits" against trespassers on their land. United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941).{6} Finally, the Court’s opinion in Oneida I implicitly assumed that the Oneidas could bring a common law action to vindicate their aboriginal rights. Citing United States v. Santa Fe Pacific R. Co., supra, at 347, we noted that the Indians’ right of occupancy need not be based on treaty, statute, or other formal Government action. 414 U.S. at 668-669. We stated that,

absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law.

Id. at 674 (citing United States v. Forness, 125 F.2d 928 (CA2), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694 (1942)).

In keeping with these well-established principles, we hold that the Oneidas can maintain this action for violation of their possessory rights based on federal common law.

B

Preemption

Petitioners argue that the Nonintercourse Acts preempted whatever right of action the Oneidas may have had at common law, relying on our decisions in Milwaukee v. Illinois, 451 U.S. 304 (1981) (Milwaukee II), and Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1 (1981). We find this view to be unpersuasive. In determining whether a federal statute preempts common law causes of action, the relevant inquiry is whether the statute "[speaks] directly to [the] question" otherwise answered by federal common law. Milwaukee II, supra, at 315 (emphasis added). As we stated in Milwaukee II, federal common law is used as a "necessary expedient" when Congress has not "spoken to a particular issue." 451 U.S. at 313-314 (emphasis added). The Nonintercourse Act of 1793 does not speak directly to the question of remedies for unlawful conveyances of Indian land. A comparison of the 1793 Act and the statute at issue in Milwaukee II is instructive.

Milwaukee II raised the question whether a common law action for the abatement of a nuisance caused by the pollution of interstate waterways survived the passage of the 1972 amendments to the Federal Water Pollution Control Act, Pub.L. 92-500, 86 Stat. 816 (FWPCA).{7} FWPCA established an elaborate system for dealing with the problem of interstate water pollution, providing for enforcement of its terms by agency action and citizens suits. See Milwaukee II, supra, at 325-327. It also made available civil penalties for violations of the Act. 33 U.S.C. §§ 1319(d), 1365. The legislative history indicated that Congress intended FWPCA to provide a comprehensive solution to the problem of interstate water pollution, as we noted in Milwaukee II, supra, at 317-319.

In contrast, the Nonintercourse Act of 1793 did not establish a comprehensive remedial plan for dealing with violations of Indian property rights. There is no indication in the legislative history that Congress intended to preempt common law remedies.{8} Only two sections of the Act, §§ 5 and 8, involve Indian lands at all.{9} The relevant clause of § 8 provides simply that

no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution. . . .

1 Stat. 330. It contains no remedial provision.{10} Section 5 subjects individuals who settle on Indian lands to a fine and imprisonment, and gives the President discretionary authority to remove illegal settlers from the Indians’ land.{11} Thus, the Nonintercourse Act does not address directly the problem of restoring unlawfully conveyed land to the Indians, in contrast to the specific remedial provisions contained in FWPCA. See Milwaukee II, 451 U.S. at 313-315.

Significantly, Congress’ action subsequent to the enactment of the 1793 statute and later versions of the Nonintercourse Act demonstrate that the Acts did not preempt common law remedies. In 1822, Congress amended the 1802 version of the Act to provide that,

in all trials about the right of property in which Indians shall be party on one side and white persons on the other, the burden of proof shall rest upon the white person in every case in which the Indian shall make out a presumption of title in himself from the fact of previous possession and ownership.

§ 4, 3 Stat. 683; see 25 U.S.C. § 194. Thus, Congress apparently contemplated suits by Indians asserting their property rights.

Decisions of this Court also contradict petitioners’ argument for preemption. Most recently, in Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979), the Omaha Indian Tribe sued to quiet title on land that had surfaced over the years as the Missouri River changed its course. The Omahas based their claim for possession on aboriginal title. The Court construed the 1822 amendment to apply to suits brought by Indian tribes as well as individual Indians. Citing the very sections of the Act that petitioners contend preempt a common law action by the Indians, the Court interpreted the amendment to be part of the overall "design" of the Nonintercourse Acts "to protect the rights of Indians to their properties." Id. at 664. See also Fellows v. Blacksmith, 19 How. 366 (1857).{12}

We recognized in Oneida I that the Nonintercourse Acts simply

put in statutory form what was or came to be the accepted rule -- that the extinguishment of Indian title required the consent of the United States.

414 U.S. at 678. Nothing in the statutory formulation of this rule suggests that the Indians’ right to pursue common law remedies was thereby preempted. Accordingly, we hold that the Oneidas’ right of action under federal common law was not preempted by the passage of the Nonintercourse Acts.

IV

Having determined that the Oneidas have a cause of action under federal common law, we address the question whether there are defenses available to the counties. We conclude that none has merit.

A

Statute of Limitations

There is no federal statute of limitations governing federal common law actions by Indians to enforce property rights. In the absence of a controlling federal limitations period, the general rule is that a state limitations period for an analogous cause of action is borrowed and applied to the federal claim, provided that the application of the state statute would not be inconsistent with underlying federal policies.){13} SeeJohnson v. Railway Express Agency, Inc., 421 U.S. 454, 465 (1975). See also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977). We think the borrowing of a state limitations period in these cases would be inconsistent with federal policy. Indeed, on a number of occasions, Congress has made this clear with respect to Indian land claims.

In adopting the statute that gave jurisdiction over civil actions involving Indians to the New York courts, Congress included this proviso:

[N]othing herein contained shall be construed as conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952.

25 U.S.C. § 233. This proviso was added specifically to ensure that the New York statute of limitations would not apply to pre-1952 land claims.{14} In Oneida I, we relied on the legislative history of 25 U.S.C. § 233 in concluding that Indian land claims were exclusively a matter of federal law. 414 U.S. at 680-682. This history also reflects congressional policy against the application of state statutes of limitations in the context of Indian land claims.

Congress recently reaffirmed this policy in addressing the question of the appropriate statute of limitations for certain claims brought by the United States on behalf of Indians. Originally enacted in 1966, this statute provided a special limitations period of 6 years and 90 days for contract and tort suits for damages brought by the United States on behalf of Indians. 28 U.S.C. §§ 2415(a), (b). The statute stipulated that claims that accrued prior to its date of enactment, July 18, 1966, were deemed to have accrued on that date. § 2415(g). Section 2415(c) excluded from the limitations period all actions "to establish the title to, or right of possession of, real or personal property."

In 1972 and again in 1977, 1980, and 1982, as the statute of limitations was about to expire for pre-1966 claims, Congress extended the time within which the United States could bring suits on behalf of the Indians. The legislative history of the 1972, 1977, and 1980 amendments demonstrates that Congress did not intend § 2415 to apply to suits brought by the Indians themselves, and that it assumed that the Indians’ right to sue was not otherwise subject to any statute of limitations. Both proponents and opponents of the amendments shared these views. See 123 Cong.Rec. 22167-22168 (1977) (remarks of Rep. Dicks, arguing that extension is unnecessary because the Indians can bring suit even if the statute of limitations expires for the United States); id. at 22166 and 22499 (remarks of Rep. Cohen, arguing that the basic problem with the bill is its failure to limit suits brought by Indians); 126 Cong.Rec. 3289 (1980) (remarks of Sen. Melcher, reiterating with respect to the 1980 extension Rep. Dicks’ argument against the 1977 extension); id. at 3290 (remarks of Sen. Cohen, same); Statute of Limitations Extension: Hearing before the Senate Select Committee on Indian Affairs, 96th Cong., 1st Sess., 312-314 (1979); Statute of Limitations Extension for Indian Claims: Hearings on S. 1377 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess., 76-77 (1977); Time Extension for Commencing Actions on Behalf of Indians: Hearing on S. 3377 and H.R. 13825 before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 23 (1972).

With the enactment of the 1982 amendments, Congress, for the first time, imposed a statute of limitations on certain tort and contract claims for damages brought by individual Indians and Indian tribes. These amendments, enacted as the Indian Claims Limitation Act of 1982, Pub.L. 97-394, 96 Stat.1976, note following 28 U.S.C. § 2415, established a system for the final resolution of pre-1966 claims cognizable under §§ 2415(a) and (b). The Act directed the Secretary of the Interior to compile and publish in the Federal Register a list of all Indian claims to which the statute of limitations provided in 28 U.S.C. § 2415 applied. The Act also directed that the Secretary notify those Indians who may have an interest in any such claims. The Indians were then given an opportunity to submit additional claims; these were to be compiled and published on a second list. Actions for claims subject to the limitations periods of § 2415 that appeared on neither list were barred unless commenced within 60 days of the publication of the second list. If at any time the Secretary decides not to pursue a claim on one of the lists,

any right of action shall be barred unless the complaint is filed within one year after the date of publication [of the notice of the Secretary’s decision] in the Federal Register.

Pub.L. 97-394, 96 Stat.1978, § 5(c) (emphasis added). Thus, § 5(c) implicitly imposed a 1-year statute of limitations within which the Indians must bring contract and tort claims that are covered by §§ 2415(a) and (b) and not listed by the Secretary. So long as a listed claim is neither acted upon nor formally rejected by the Secretary, it remains live.{15}

The legislative history of the successive amendments to § 2415 is replete with evidence of Congress’ concern that the United States had failed to live up to its responsibilities as trustee for the Indians, and that the Department of the Interior had not acted with appropriate dispatch in meeting the deadlines provided by § 2415. E.g., Authorizing Indian Tribes to Bring Certain Actions on Behalf of their Members with Respect to Certain Legal Claims, and for Other Purposes, H.R.Rep. No. 97-954, p. 5 (1982). By providing a 1-year limitations period for claims that the Secretary decides not to pursue, Congress intended to give the Indians one last opportunity to file suits covered by § 2415(a) and (b) on their own behalf. Thus, we think the statutory framework adopted in 1982 presumes the existence of an Indian right of action not otherwise subject to any statute of limitations. It would be a violation of Congress’ will were we to hold that a state statute of limitations period should be borrowed in these circumstances.

B

Laches

The dissent argues that we should apply the equitable doctrine of laches to hold that the Oneidas’ claim is barred. Although it is far from clear that this defense is available in suits such as this one,{16} we do not reach this issue today. While petitioners argued at trial that the Oneidas were guilty of laches, the District Court ruled against them, and they did not reassert this defense on appeal. As a result, the Court of Appeals did not rule on this claim, and we likewise decline to do so.

C

Abatement

Petitioners argue that any cause of action for violation of the Nonintercourse Act of 1793 abated when the statute expired. They note that Congress specifically provided that the 1793 Act would be in force "for the term of two years, and from thence to the end of the then next session of Congress, and no longer." 1 Stat. 332, § 15. They contend that the 1796 version of the Nonintercourse Act repealed the 1793 version and enacted an entirely new statute, and that, under the common law abatement doctrine in effect at the time, any cause of action for violation of the statute finally abated on the expiration of the statute.{17} We disagree.

The pertinent provision of the 1793 Act, § 8, like its predecessor, § 4 of the 1790 Act, 1 Stat. 138, merely codified the principle that a sovereign act was required to extinguish aboriginal title, and thus that a conveyance without the sovereign’s consent was void ab initio.See supra at 233-234, and n. 3. All of the subsequent versions of the Nonintercourse Act, including that now in force, 25 U.S.C. § 177, contain substantially the same restraint on the alienation of Indian lands. In these circumstances, the precedents of this Court compel the conclusion that the Oneidas’ cause of action has not abated.{18}

D

Ratificaton

We are similarly unpersuaded by petitioners’ contention that the United States has ratified the unlawful 1795 conveyances. Petitioners base this argument on federally approved treaties in 1798 and 1802 in which the Oneidas ceded additional land to the State of New York.{19} There is a question whether the 1802 treaty ever became effective.{20} Assuming it did, neither the 1798 nor the 1802 treaty qualifies as federal ratification of the 1795 conveyance.

The canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians. Thus, it is well established that treaties should be construed liberally in favor of the Indians, Choctaw Nation v. United States, 318 U.S. 423, 431-432 (1943); Choate v. Trapp, 224 U.S. 665, 675 (1912), with ambiguous provisions interpreted to their benefit, McClanahan v. Arizona State Tax Comm’n, 411 U.S. 164, 174 (1973); Carpenter v. Shaw, 280 U.S. 363, 367 (1930); Winters v. United States, 207 U.S. 564, 576-577 (1908). "Absent explicit statutory language," Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 690 (1979), this Court accordingly has refused to find that Congress has abrogated Indian treaty rights. Menominee Tribe v. United States, 391 U.S. 404 (1968). See generally F. Cohen, Handbook of Federal Indian Law 221-225 (1982 ed.) (hereinafter F. Cohen).

The Court has applied similar canons of construction in nontreaty matters. Most importantly, the Court has held that congressional intent to extinguish Indian title must be "plain and unambiguous," United States v. Santa Fe Pacific R. Co., 314 U.S. at 346, and will not be "lightly implied," id. at 354. Relying on the strong policy of the United States "from the beginning to respect the Indian right of occupancy," id. at 345 (citing Cramer v. United States, 261 U.S. 219, 227 (1923)), the Court concluded that it "[c]ertainly" would require "plain and unambiguous action to deprive the [Indians] of the benefits of that policy," 314 U.S. at 346. See F. Cohen.

In view of these principles, the treaties relied upon by petitioners are not sufficient to show that the United States ratified New York’s unlawful purchase of the Oneidas’ land. The language cited by petitioners, a reference in the 1798 treaty to "the last purchase" and one in the 1802 treaty to "land heretofore ceded," far from demonstrates a plain and unambiguous intent to extinguish Indian title. Seen.19, supra. There is no indication that either the Senate or the President intended by these references to ratify the 1795 conveyance. See 1 Journal of the Executive proceedings of the Senate 273, 312, 408, 428 (1828).{21}

E

Nonjusticiability

The claim also is made that the issue presented by the Oneidas’ action is a nonjusticiable political question. The counties contend first that Art. 1, § 8, cl. 3, of the Constitution explicitly commits responsibility for Indian affairs to Congress.{22} Moreover, they argue that Congress has given exclusive civil remedial authority to the Executive for cases such as this one, citing the Nonintercourse Acts and the 1794 Treaty of Canandaigua.{23} Thus, they say this case falls within the political question doctrine because of "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Baker v. Carr, 369 U.S. 186, 217 (1962). Additionally, the counties argue that the question is nonjusticiable because there is "an unusual need for unquestioning adherence to a political decision already made." Ibid. None of these claims is meritorious.

This Court has held specifically that Congress’ plenary power in Indian affairs under Art. 1, § 8, cl. 3, does not mean that litigation involving such matters necessarily entails nonjusticiable political questions. Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 83-84 (1977). Accord, United States v. Sioux Nation, 448 U.S. 371, 413 (1980). See also Baker v. Carr, supra, at 215-217. If Congress’ constitutional authority over Indian affairs does not render the Oneidas’ claim nonjusticiable, a fortiori, Congress’ delegation of authority to the President does not do so either.{24}

We are also unpersuaded that petitioners have shown "an unusual need for unquestioning adherence to a political decision already made." Baker v. Carr, supra, at 217. The basis for their argument is the fact that, in 1968, the Commissioner of Indian Affairs declined to bring an action on behalf of the Oneidas with respect to the claims asserted in these cases. The counties cite no cases in which analogous decisions provided the basis for nonjusticiability. Cf. INS v. Chadha, 462 U.S. 919 (1983); United States v. Nixon, 418 U.S. 683 (1974); Powell v. McCormack, 395 U.S. 486 (1969). Our cases suggest that such "unusual need" arises most of the time, if not always, in the area of foreign affairs. Baker v. Carr, supra, at 211-213; see also Gilligan v. Morgan, 413 U.S. 1 (1973). Nor do the counties offer convincing reasons for thinking that there is a need for "unquestioning adherence" to the Commissioner’s decision. Indeed, the fact that the Secretary of the Interior has listed the Oneidas’ claims under the § 2415 procedure suggests that the Commissioner’s 1968 decision was not a decision on the merits of the Oneidas’ claims. Seen. 15, supra.{25}

We conclude, therefore, that the Oneidas’ claim is not barred by the political question doctrine.

V

Finally, we face the question whether the Court of Appeals correctly held that the federal courts could exercise ancillary jurisdiction over the counties’ cross-claim against the State of New York for indemnification. The counties assert that this claim arises under both state and federal law. The Court of Appeals did not decide whether it was based on state or federal law. See 719 F.2d at 542-544. It held, however, that the 1790 and 1793 Nonintercourse Acts

placed New York on notice that Congress had exercised its power to regulate commerce with the Indians. Thus, anything New York thereafter did with respect to Indian lands carried with it a waiver of the State’s eleventh amendment immunity.

Id. at 543 (citing Edelman v. Jordan, 415 U.S. 651, 672 (1974), and Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 283-284 (1973)). In essence, the Court of Appeals held that, by violating a federal statute, the State consented to suit in federal court by any party on any claim, state or federal, growing out of the same nucleus of operative facts as the statutory violation. This proposition has no basis in law.

The counties’ cross-claim for indemnification raises a classic example of ancillary jurisdiction. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978). The Eleventh Amendment forecloses, however, the application of normal principles of ancillary and pendent jurisdiction where claims are pressed against the State. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). As we held in Pennhurst:

[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each claim in a case to see if the court’s jurisdiction over that claim is barred by the Eleventh Amendment.

Id. at 121. The indemnification claim here, whether cast as a question of New York law or federal common law, is a claim against the State for retroactive monetary relief. In the absence of the State’s consent, id. at 99 (citing Clark v. Barnard, 108 U.S. 436, 447 (1883)), the suit is barred by the Eleventh Amendment. Thus, as the Court of Appeals recognized, whether the State has consented to waive its constitutional immunity is the critical factor in whether the federal courts properly exercised ancillary jurisdiction over the counties’ claim for indemnification. Pennhurst, supra.

The only ground the Court of Appeals and the counties offer for believing that the State has consented to suit in federal court on this claim is the fact that it violated the 1793 Nonintercourse Act by purchasing the Oneidas’ land. The counties assert that, because the Constitution specifically authorizes Congress "[t]o regulate Commerce . . . with the Indian Tribes," the States necessarily consented to suit in federal court with respect to enactments under this Clause. See County of Monroe v. Florida, 678 F.2d 1124 (CA2 1982) (making an analogous argument with respect to Congress’ extradition power), cert. denied, 459 U.S. 1104 (1983); Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1285 (CA9 1979) (making such an argument with respect to Congress’ power over copyright and patents). Thus, they contend, Congress can abrogate the States’ Eleventh Amendment immunity, and has done so by enacting the Nonintercourse Acts. By violating the 1793 Act, the State thus waived its immunity to suit in federal court with respect to such violations.

Assuming, without deciding, that this reasoning is correct, it does not address the Eleventh Amendment problem here, for the counties’ indemnification claim against the State does not arise under the 1793 Act. The counties cite no authority for their contrary view. They urge simply that the State would be unjustly enriched if the counties were forced to pay the Oneidas without indemnity from the State, and thus that the Court should "fashion a remedy" for the counties under the 1793 Act. This is an argument on the merits; it is not an argument that the indemnification claim arises under the Act. As we said in Pennhurst, "[a] State’s constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." 465 U.S. at 99 (emphasis in original). The Eleventh Amendment bar does not vary with the merits of the claims pressed against the State.

We conclude, therefore, that the counties’ cross-claim for indemnity by the State raises a question of state law. We are referred to no evidence that the State has waived its constitutional immunity to suit in federal court on this question.{26} Thus, under Pennhurst, we hold that the federal courts erred in exercising ancillary jurisdiction over this claim.

VI

The decisions of this Court emphasize "Congress’ unique obligation toward the Indians." Morton v. Mancari, 417 U.S. 535, 555 (1974). The Government, in an amicus curiae brief, urged the Court to affirm the Court of Appeals. Brief for United States as Amicus Curiae 28. The Government recognized, as we do, the potential consequences of affirmance. It was observed, however, that

Congress has enacted legislation to extinguish Indian title and claims related thereto in other eastern States, . . . and it could be expected to do the same in New York, should the occasion arise.

Id. at 29-30. See Rhode Island Indian Claims Settlement Act, 25 U.S.C. § 1701 et seq.; Maine Indian Claims Settlement Act, 25 U.S.C. § 1721 et seq. We agree that this litigation makes abundantly clear the necessity for congressional action.

One would have thought that claims dating back for more than a century and a half would have been barred long ago. As our opinion indicates, however, neither petitioners nor we have found any applicable statute of limitations or other relevant legal basis for holding that the Oneidas’ claims are barred, or otherwise have been satisfied. The judgment of the Court of Appeals is affirmed with respect to the finding of liability under federal common law,{27} and reversed with respect to the exercise of ancillary jurisdiction over the counties’ cross-claim for indemnification. The cases are remanded to the Court of Appeals for further proceedings consistent with our decision.

It is so ordered.

JUSTICE STEVENS concurs in the judgment with respect to No. 83-1240.

* Together with No. 83-1240, New York v. Oneida Indian Nation of New York State et al., also on certiorari to the same court.

* THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE REHNQUIST join only Part V of this opinion.

1. The Treaty of Fort Harmar stated that the Oneidas and the Tuscaroras were "again secured and confirmed in the possession of their respective lands." 7 Stat. 34. The Treaty of Canandaigua of 1794 provided:

The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them . . . in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.

7 Stat. 45.

2. Section 4 of the 1790 Act declared that

no sale of lands made by any Indians, or any nation or tribe of Indians within the United States, shall be valid to any person or persons, or to any state, whether having the right of preemption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

1 Stat. 138.

3. This Court explained the doctrine of discovery as follows:

[D]iscovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.

The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. . . .

The rights thus acquired being exclusive, no other power could interpose between [the discoverer and the natives].

In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.

Johnson v. McIntosh, 8 Wheat. 543, 573-574 (1823).

4. Madison cited the National Government’s inability to control trade with the Indians as one of the key deficiencies of the Articles of Confederation, and urged adoption of the Indian Commerce Clause, Art. 1, § 8, cl. 3, that granted Congress the power to regulate trade with the Indians. The Federalist No. 42, p. 284 (J. Cooke, ed.1961). See also 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, 23-29 (1979).

5. Petitioners argue that Jaeger v. United States, 27 Ct.Cl. 278 (1892), holds that tribes can sue only when specifically authorized to do so by Congress. Jaeger is clearly inapposite to this case. It applied only to the special jurisdiction of the Court of Claims and to claims against the United States.

6. See also Fellows v. Blacksmith, 19 How. 366 (1857) (upholding trespass action on Indian land); Inupiat Community of the Arctic Slope v. United States, 230 Ct.Cl. 647, 656-657, 680 F.2d 122, 128-129 (right to sue for trespass is one of rights of Indian title), cert. denied, 459 U.S. 969 (1982); United States v. Southern Pacific Transportation Co., 543 F.2d 676 (CA9 1976) (damages available against railroad that failed to acquire lawful easement or right-of-way over Indian reservation); Edwardsen v. Morton, 369 F.Supp. 1359, 1371 (DC 1973) (upholding trespass action based on aboriginal title).

7. Previously, in Illinois v. City of Milwaukee, 406 U.S. 91 (1972), the Court had held that federal common law provided a cause of action for the abatement of interstate water pollution.

8. There is some contemporaneous evidence to the contrary. President Washington, at whose urging the first Acts were passed, met with Cornplanter, Chief of the Seneca Nation, shortly after the enactment of the 1790 Act. They discussed the Senecas’ complaints about land transactions, and Washington assured them that the new statute would protect their interests. Washington told Cornplanter:

Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. . . .

* * * *

If . . . you have any just cause of complaint against [a purchaser] and can make satisfactory proof thereof, the federal courts will be open to you for redress, as to all other persons.

4 American State Papers, Indian Affairs, Vol. l, p. 142 (1832).

9. The Act contained 15 sections. A number of these set out licensing requirements for those who wished to trade with the Indians (§§ 1,2,3). Several others established special requirements for purchasing horses from Indians (§§ 6,7). Others gave the United States courts jurisdiction over offenses under the Act (§§ 10, 11), and provided for the division of fines and forfeitures (§ 12). 1 Stat. 329-333.

10. The second clause of § 8 makes it a criminal offense to negotiate a treaty or convention for the conveyance of Indian land, except under the authority and in the presence of United States commissioners. 1 Stat. 330. It likewise makes no provision to restore illegally purchased land to the Indians.

Petitioners make much of the fact that the 1793 Act contained criminal penalties in arguing that the Act preempted common law actions. In property law, however, it is common to have criminal and civil sanctions available for infringement of property rights, and for government officials to use the police power to remove trespassers from privately owned land. See 5 R. Powell, Real Property 11758 (1984).

11. The Act authorizes the President

to take such measures, as he may judge necessary, to remove from lands belonging to any Indian tribe, any citizens or inhabitants of the United States, who have made, or shall hereafter make, or attempt to make a settlement thereon.

1 Stat. 330. It imposes no obligation on the Executive to take remedial action, and apparently was intended only to give the President discretionary authority to preserve the peace.

12. Similarly, we find no support for petitioners’ contention that the availability of suits by the United States on behalf of Indian tribes precludes common law actions by the tribes themselves. See Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 369 (1968); Creek Nation v. United States, 318 U.S. 629, 640 (1943) (citing Cherokee Nation v. Southern Kansas R. Co., 135 U.S. 641 (1890); Cherokee Nation v. Hitchcock, 187 U.S. 294 (1902), and Lone Wolf v. Hitchcock, 187 U.S. 553 (1903)). See also Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 473 (1976) ("[I]t would appear that Congress contemplated that a tribe’s access to federal court to litigate a matter arising `under the Constitution, laws, or treaties’ would be, at least in some respects, as broad as that of the United States suing as the tribe’s trustee").

13. Under the Supremacy Clause, state law time-bars, e.g., adverse possession and laches, do not apply of their own force to Indian land title claims. See Ewert v. Bluejacket, 259 U.S. 129, 137-138 (1922); United States v. Ahtanum Irrigation District, 236 F.2d 321, 334 (CA9 1956), cert. denied, 352 U.S. 988 (1957).

14. Representative Morris, the sponsor of the proviso, stated:

As it is now, the Indians, as we know, are wards of the Government and, therefore, the statute of limitations does not run against them as it does in the ordinary case. This [proviso] will preserve their rights so that the statute will not be running against them concerning those claims that might have arisen before the passage of this act.

96 Cong.Rec. 12460 (1950).

15. The two lists were published in the Federal Register on March 31, 1983, and November 7, 1983, respectively. 48 Fed.Reg. 13698, 51204. The Oneidas’ claims are on the first list compiled by the Secretary. Id. at 13920. These claims would not be barred, however, even if they were not listed. The Oneidas commenced this suit in 1970, when no statute of limitations applied to claims brought by the Indians themselves. Additionally, if claims like the Oneidas’, i.e., damages actions that involve litigating the continued vitality of aboriginal title, are construed to be suits "to establish the title to, or right of possession of, real or personal property," they would be exempt from the statute of limitations of the Indian Claims Limitations Act of 1982. The Government agrees with this view. Brief for United States as Amicus Curiae 24-25.

16. We note, as JUSTICE STEVENS properly recognizes, that application of the equitable defense of laches in an action at law would be novel indeed. Moreover, the logic of the Court’s holding in Ewert v. Bluejacket, 259 U.S. 129 (1922), seems applicable here:

the equitable doctrine of laches, developed and designed to protect good faith transactions against those who have slept on their rights, with knowledge and ample opportunity to assert them, cannot properly have application to give vitality to a void deed and to bar the rights of Indian wards in lands subject to statutory restrictions.

Id. at 138. Additionally, this Court has indicated that extinguishment of Indian title requires a sovereign act. See, e.g., Oneida I, 414 U.S. 661, 670 (1974); United States v. Candelaria, 271 U.S. 432, 439 (1926), quoting United States v. Sandoval, 231 U.S. 28, 45-47 (1913). In these circumstances, it is questionable whether laches properly could be applied. Furthermore, the statutory restraint on alienation of Indian tribal land adopted by the Nonintercourse Act of 1793 is still the law. See 25 U.S.C. § 177. This fact not only distinguishes the cases relied upon by the dissent, but also suggests that, as with the borrowing of state statutes of limitations, the application of laches would appear to be inconsistent with established federal policy. Although the issue of laches is not before us, we add these observations in response to the dissent.

17. It is questionable whether the common law doctrine of abatement is even relevant to the statutory provision at issue in this case. The doctrine principally applies to criminal law, and provides that all prosecutions that have not proceeded to final judgment under a statute that has been repealed or has expired have abated, unless the repealing legislature provides otherwise. See Warden v. Marrero, 417 U.S. 653, 660 (1974).

18. The reasoning of Bear Lake and River Water Works and Irrigation Co. v. Garland, 164 U.S. 1, 11-12 (1896), is directly on point:

Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the [old] act . . . when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is . . . entirely correct to say that the new act should be construed as a continuation of the old. . . .

Accord, Steamship Co: v. Joliffe, 2 Wall. 450, 458 (1865); Great Northern R. Co. v. United States, 155 F. 945, 948 (CA8 1907), aff’d, 208 U.S. 452 (1908).

19. The 1798 Treaty provided:

[T]he said Indians do cede release and quit claim to the people of the State of New York forever all the lands within their reservation to the westward and southwestward of a line from the northeastern corner of lot No. 54 in the last purchase from them running northerly to a Button wood tree . . . standing on the bank of the Oneida lake.

Treaty of June 1, 1798, reproduced in Ratified Indian Treaties 1722-1869, National Archives Microfilm Publications, Microcopy No. 668 (roll 2) (emphasis added). The 1802 Treaty provided:

All that certain tract of land beginning at the southwest corner of the land lying along the Gennesee Road, . . . and running thence along the last mentioned tract easterly to the southeast corner thereof; thence southerly, in the direction of the continuation of the east bounds of said last mentioned tract, to other lands heretofore ceded by the said Oneida nation of Indians to the People of the State of New York.

Treaty of June 4, 1802, reproduced in 4 American State Papers, Indian Affairs, Vol. 1, p. 664 (1832) (emphasis added).

20. Although both treaties were approved by the Senate, see 1 Journal of the Executive Proceedings of the Senate of the United States 312 (1828); id. at 428, neither is contained in the compilation of "all Treaties with . . . Indian tribes" compiled at Congress’ direction. See J.Res. 10, 5 Stat. 799 (1845). There is evidence that President Adams signed the 1798 Treaty in the February 23, 1799, entry in his Journal of executive actions, March 1797-March 1799 ("Signed a treaty with the Oneida nation"), reproduced in The Adams Family Papers, John Adams, Misc. (Lib.Cong. Reel No.194). Moreover, the 1798 Treaty was included in an 1822 compilation of treaties with the Indians that extinguished Indian title in New York. H.R.Doc. No. 74, 17th Cong., 1st Sess., 8 (1822). There is no similar evidence that the 1802 Treaty was signed by the President.

21. The cases relied upon by petitioners likewise do not support a finding of ratification here. Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), expressly reaffirmed the principles of construction which we apply in this case. Petitioners’ other cases, e.g., FPC v. Tuscarora Indian Nation, 362 U.S. 99 (1960), and Shoshone Tribe v. United States, 299 U.S. 476 (1937), do so implicitly.

22.

The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.

23. The counties rely on the language in the Treaty providing that

complaint shall be made by . . . the Six Nations or any of them, to the President of the United States, or the Superintendent by him appointed . . . and such prudent measures shall then be pursued as shall be necessary to preserve our peace and friendship unbroken; until the legislature . . . of the United States shall make other equitable provision for the purpose.

Art. VII, Treaty of Canandaigua, Nov. 11, 1794, 7 Stat. 46.

24. Moreover, Congress’ delegation to the President is not a "textually demonstrable constitutional commitment," Baker v. Carr, 369 U.S. at 217 (emphasis added), but rather a statutory commitment of authority. We have held today that the Nonintercourse Acts do not preempt common law causes of action by Indian tribes to enforce their property rights. The language in the Treaty of Canandaigua, seen. 23, supra, is likewise an insufficient basis on which to find that the Oneidas’ federal common law right of action has been preempted. Thus, the predicate of petitioners’ argument, that Congress has delegated exclusive civil remedial authority to the President, must fail.

25. We note that the Commissioner’s decision was based on the fact that the same claims were then pending before the Indian Claims Commission. The Oneidas have since withdrawn their claims from the Indian Claims Commission.

26. Three cases establish our approach to the test of waiver of the Eleventh Amendment. Edelman v. Jordan, 415 U.S. 651 (1974); Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279 (1973); and Parden v. Terminal R. Co., 377 U.S. 184 (1964). Although each of these involved waiver for purposes of suit under a federal statute, we indicated in Pennhurst that the same standards apply in the context of a state statute. 465 U.S. at 99-100.

27. The question whether equitable considerations should limit the relief available to the present day Oneida Indians was not addressed by the Court of Appeals or presented to this Court by petitioners. Accordingly, we express no opinion as to whether other considerations may be relevant to the final disposition of this case should Congress not exercise its authority to resolve these far-reaching Indian claims.

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Chicago: Powell, "Powell, J., Lead Opinion," Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985) in 470 U.S. 226 470 U.S. 230–470 U.S. 247. Original Sources, accessed August 11, 2022, http://www.originalsources.com/Document.aspx?DocID=48I2MRA7NE2XZGQ.

MLA: Powell. "Powell, J., Lead Opinion." Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985), in 470 U.S. 226, pp. 470 U.S. 230–470 U.S. 247. Original Sources. 11 Aug. 2022. http://www.originalsources.com/Document.aspx?DocID=48I2MRA7NE2XZGQ.

Harvard: Powell, 'Powell, J., Lead Opinion' in Oneida County v. Oneida Ind. Nation, 470 U.S. 226 (1985). cited in 1985, 470 U.S. 226, pp.470 U.S. 230–470 U.S. 247. Original Sources, retrieved 11 August 2022, from http://www.originalsources.com/Document.aspx?DocID=48I2MRA7NE2XZGQ.