Top Justices' questions frame Sherrill case
Jan. 12, 2005

R. PATRICK CORBETT
Observer-Dispatch

WASHINGTON, D.C. —The associate justices of the U.S. Supreme Court demonstrated the depth of their interest Tuesday as they probed lawyers for more details on the city of Sherrill's complaint and the Oneida Indian Nation's response.

The questions also framed the debate that will occupy the justices before they vote on the question.

Justice Antonin Scalia spoke most clearly on the issue. He said that after reading the voluminous briefs filed by both parties, "I interpret that the Oneidas gave up all their sovereignty and (that) New York state" had control over the land via the 1788 Treaty of Fort Schuyler.

That position is supported by the Oneidas' subsequent actions, he said.

"After 1788, the Oneidas felt New York state had jurisdiction," Scalia said.

Scalia said the Oneidas are "asking the court to sanction a very odd checkerboard in the center of New York. It's a terrible situation, as far as governments are concerned. It could create a chaotic situation ... if we say you have jurisdiction over any land you buy."

"This case is only about taxation," Justice David H. Souter said.

"We have to look to whether the federal government disestablished the (Oneida) reservation," Souter said. If it did not, he said, "Why does (the Sherrill property, which lies within the disputed territory) become taxable?"

Justice Stephen G. Breyer said the loss of taxes "doesn't impact the expectations" of Sherrill in the same way the threat of eviction from Indian land did in Western New York in the past.

Justice Sandra Day O'Connor asked if the issue of Oneida sovereignty is really at the heart of the matter.

"Is that what's at the bottom of the question?" she asked. "We have to decide that. Then what do we do with the Oneida II case (that spurred the Oneida land claim)?"

Justice Stephen G. Breyer also spoke to the potential impact of the current case on the larger land claim.

"Are we considering the negotiating positions and strengthening people's hands?" he asked.

Faced with the argument that the Oneidas waited too long -- 190 years -- to recover land that might have been illegally taken, O'Connor asked, "Can the Oneida Nation lose sovereignty over time?"

Souter said while the Buffalo Creek Treaty of 1838 purports to represent a federal deal to force Oneidas to give up their New York land, a federal representative at the time told the Indians, "You don't have to leave."

"No one moved," Breyer said.

Justice Ruth Bader Ginsburg asked if there was evidence of federal supervision of the Oneida land to validate the Nation's claim that its land is federally protected.

O'Connor touched on another issue close to the hearts of the local governments, as well. Despite continued arguments that only Congress can give or take away Indian land, she said, in the ongoing disputes between tribes and local non-Indian governments, "Congress has done nothing about it."

Contact R. Patrick Corbett at pcorbett@utica.gannett.com