Order Code RS22107
April 6, 2005
CRS Report for Congress
Received through the CRS Web
State Regulation of Tribal Lands in New York:
City of Sherrill v. Oneida Indian Nation of New
American Law Division
On March 29, 2005, the Supreme Court issued its decision in City of Sherrill v.
Oneida Indian Nation of New York, a case with serious implications for the State of
New York’s ability to regulate tribal lands within New York. A federal appeals court
had ruled that the Oneida Indian Nation could, by purchasing former reservation lands
illegally alienated from the tribe, reestablish the reservation status of those lands and
thereby shield them from state taxation. The Supreme Court reversed this decision,
holding that the passage of time between the illegal conveyance and the claim in this
case barred the Oneidas’ attempt to reassert sovereignty over the land in question.
The relationship between state and tribal power on tribally-owned lands has always
been an uneasy one, particularly when the question of a state’s ability to levy taxes on
such lands arises. The Constitution vests the federal government with exclusive power
with respect to Indian tribes,1 and the Supreme Court has held that, “as a corollary of this
authority, and in recognition of the sovereignty retained by Indian tribes even after
formation of the United States, Indian tribes and individuals generally are exempt from
state taxation within their own territory.”2 Consequently, while Congress can allow states
to tax Indians within reservation land, this congressional intent must be expressed in
“unmistakably clear” terms in order to be recognized by the courts.3
The Facts of Sherrill. Some dispute exists as to when the Oneida Reservation in
New York was formally established. However, the federal government acknowledged the
U.S. Const., Art. I, § 8, cl. 3.
Montana v. Blackfeet Nation of Indian Tribes, 451 U.S. 759, 764 (1985).
See, e.g., County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502
U.S. 251, 258 (1992).
Congressional Research Service ˜ The Library of Congress
existence of such a reservation in 1794 when Congress ratified the Treaty of
Canandaigua,4 which included a promise by the federal government that “the said
reservation shall remain theirs, until they choose to sell the same to the people of the
United States who have the right to purchase”5 (emphasis added). Twenty years later,
New York began pressuring the tribes residing within the state’s borders – including the
Oneidas – to remove to the western territories, and many did so. The Oneidas sold much
of their Reservation lands to New York State and to other non-tribal-members.
Significantly, these purchasers bought the land without the consent of the federal
government, despite the Indian Nonintercourse Act’s requirement that such consent be
obtained before purchasing tribal land.6
This practice of removal – in essence, paying tribes to move west – picked up steam
in other states, and by the 1830's it was the policy of the federal government to encourage
eastern tribes to exchange their land for lands set aside in the West.7 In order to facilitate
the removal of the Indians still remaining in New York at the time, the United States
entered into the Treaty of Buffalo Creek with the various New York tribes. In 1838,
Congress ratified the treaty,8 in which the approximately 5,000 remaining Oneidas agreed
to “remove to...[Kansas], as soon as they can make satisfactory arrangements with the
Government of the State of New York for the purchase of their lands in Oneida.”9 The
remaining Oneidas never removed to Kansas, and the last 150 years have been dotted with
frequent litigation over the validity of the Oneida sales and the rights of the Oneidas vis-avis the original reservation land.10
In 1985, the Supreme Court ruled that the Oneidas could recover damages against
several counties for violating the Oneidas’ aboriginal rights to land unlawfully conveyed
to and occupied by those counties.11 The Court specifically left open the question,
however, of whether “equitable considerations should limit the relief available to the
present day Oneida Indians.”12 The Court’s ruling spurred more litigation concerning how
much money the Oneidas and other similarly-situated New York tribes are owed.
Currently, several of these tribes are engaged in settlement negotiations with the State of
7 Stat. 44. The facts are taken from the Second Circuit’s opinion in the case. See Oneida
Indian Nation v. Sherrill, 337 F.3d 139, 144-146 (2d Cir. 2003) (hereinafter, “Second Circuit
7 Stat. 45.
The Indian Trade and Intercourse Act, better known today as the Nonintercourse Act, was
passed in 1790 (1 Stat. 137). The current version is codified, as amended, at 25 U.S.C. § 177
(“No purchase...or other conveyance of lands...from any Indian nation or tribe of Indians, shall
be of any validity in law or equity, unless the same be made by treaty or convention entered into
pursuant to the Constitution.”).
See Indian Removal Act of 1830, 4 Stat 411.
7 Stat. 550.
Id. at 554.
See, e.g., New York Indians v. U.S., 170 U.S. 1 (1898); Oneida Indian Nation of New York v.
County of Oneida, 414 U.S. 661 (1974).
Oneida County v. Oneida Indian Nation, 470 U.S. 226 (1985).
Id. at 253, note 27.
New York. Reportedly, the settlement agreements would allow these tribes to build
casinos in the Catskill mountains.13
The particular dispute in Sherrill began in the 1990's, when the Oneidas started
buying back parcels of former Reservation land – several in particular located in Sherrill.
On two of these properties (“the Sherrill properties”), the Oneidas operated a gas station,
convenience store, and textile facility. The Oneidas refused to pay property taxes or to
collect sales taxes related to the Sherrill properties, arguing that the properties are within
their reservation, and so are free from state and municipal taxation.14 Following the
Oneidas’ refusal to pay taxes, Sherrill offered some of the properties at tax sales and
instituted eviction proceedings.
The Lower Court Rulings and Possible Ramifications
The tribal and municipal parties brought their dispute to court, the essential question
being: did the Oneidas’ land regain its reservation status when it was repurchased by the
Oneidas, in light of the fact that the federal government never approved the original sale
that alienated the land from the Oneidas? The District Court answered this question in
the affirmative,15 and the municipal parties appealed to the Second Circuit Court of
Appeals. The major question, according to the Second Circuit, was whether the Oneida
Reservation had been explicitly disestablished by Congress. The municipal parties
pointed to the aforementioned Treaty of Buffalo Creek as evincing Congress’s intent to
disestablish the Oneida Reservation. In examining this argument, the court used two
well-settled principles for interpreting Indian treaties: 1) Indian treaties are to be construed
liberally in favor of the Indians, and ambiguous terms are to be interpreted to their benefit;
and 2) congressional intent to abrogate Indian treaty rights can only be found with the help
of explicit statutory language to that effect.16
With these principles in mind, the Second Circuit examined the Buffalo Creek
Treaty. The court found that while certain articles of the treaty implicitly disestablished
various reservations with language evincing an intent that the tribes in question would
remove, the Oneidas conditioned their removal on future arrangements between the
Oneidas and the Governor of New York. Because these agreements were never made, the
court concluded, the Reservation was never disestablished.17 As reservation land, then,
it could not be alienated without express approval of the federal government, of which
See, e.g., Associated Press, Five Land Claim Tribes Meet (March 31, 2005). This story can be
found at [http://www.gazetteextra.com/oneidas033105.asp] (Last visited, March 31, 2005).
While Congress has granted the State of New York significant criminal and civil jurisdiction
over tribal lands in New York, Congress specifically directed that “nothing herein contained shall
be construed as subjecting the lands within any Indian reservation in the State of New York to
taxation for State or local purposes.” 25 U.S.C. § 233.
Oneida v. City of Sherrill, 145 F.Supp.2d 226 (N.D.N.Y. 2001).
Second Circuit Opinion, 337 F.3d at 158. On this second point, however, the court noted that,
when confronted with the question of Congress’s intent to disestablish a reservation or diminish
reservation land, the Supreme Court has looked to legislative history and the circumstances
surrounding the treaty in question. Id. at 159-160.
Id. at 162.
there was none in this case. The court held that when Indian land has, as here, been
alienated in ways inconsistent with federal law, the tribe retains aboriginal Indian title to
the land, and if the tribe at some point buys the land back, the land reverts to its former
reservation status, largely free from state taxation.18
Potential Ramifications of the Second Circuit’s Holding: Cayuga Indian
Nation. While the Second Circuit’s holding was limited to taxation, the rationale behind
that holding – that Indian tribes can reacquire former tribal lands and thereby reestablish
the reservation status of such lands – had potentially broad consequences for state
regulation of tribal activities in other areas, most notably Indian gaming. This was
evidenced by the federal district court ruling in Cayuga Indian Nation of New York v.
Village of Union Springs.19
In Cayuga Indian Nation, the tribe made an argument nearly identical to that put
forward by the Oneidas. Like the Oneidas, much of the Cayugas’ treaty land had been
sold to the State of New York – without the federal government’s permission – in the late
eighteenth and early nineteenth centuries. In 2003, the Cayugas reacquired some of that
land, and went ahead with plans to build a bingo hall on the property. The village of
Union Springs attempted to halt construction pursuant to the city’s zoning and
construction ordinances, while the tribe argued that the land is part of the tribe’s
reservation and, therefore, the Indian Gaming Regulatory Act (IGRA)20 – not municipal
regulation – governs gambling facilities on the land. Relying largely on the Second
Circuit’s rationale with respect to the Oneidas, the district court held that the Cayugas’
title to the land in question could only have been legally divested by Congress. Because
that never happened, the reservation never ceased to exist, and the tribes reestablished the
reservation status of the land when they repurchased it.21 The court agreed with the tribe
that the bingo hall project was “governed by IGRA, which preempts state and local
attempts to regulate gaming on Indian lands.”22
The Supreme Court’s Holding
The Supreme Court approached the facts before it in Sherrill from an entirely
different angle from the lower courts or either of the parties. Indeed, as the Court wrote,
“We resolve this case on considerations not discretely identified in the parties’ briefs.”23
As mentioned above, in 1985 the Supreme Court found that, while the Oneidas were
entitled to damages for the illegal conveyance and occupation of lands to which they held
Id. at 157.
317 F.Supp.2d 128 (N.D.N.Y. 2004).
25 U.S.C. §§ 2701-2721; 18 U.S.C. §§ 1168. IGRA provides the legal framework for the
conduct of gaming activities on Indian lands generally free from the strictures of state and local
regulation. See generally CRS Report RS21499, Indian Regulatory Gaming Act: Gaming on
Newly Acquired Lands, by (name redacted).
Cayuga Indian Nation, 317 F.Supp.2d at 137.
Id. at 148.
City of Sherrill v. Oneida Indian Nation of N.Y., 453 U.S. __ , 2005 WL 701058 (2005)
(hereinafter “Sherrill”) (slip op., at 14, note 8).
aboriginal title, the Court explicitly left open the question of whether “equitable
considerations should limit the relief available to the present day Oneida Indians.”24 The
Court viewed the Oneidas’ claims in Sherrill as a chance to answer this question. In other
words, this case was not about the status of the land, as the Second Circuit thought, but
rather the type of remedy due to the Oneidas for the wrongful occupation of that land. The
Court, then, framed the Oneidas’ claim thusly: “[The Oneida Nation] seeks declaratory
and injunctive relief recognizing its present and future sovereign immunity from local
taxation on parcels of land the Tribe purchased in the open market, properties that had
been subject to state and local taxation for generations.”25
Re-casting the Oneidas’ claim as one for redress of a past wrong, the Court held that
three doctrines – each related to the passage of time since the wrong was committed –
prevent the Oneidas from obtaining the redress they seek, i.e., to be free from state and
local taxation. First, the majority invoked the doctrine of laches, “a doctrine focused on
one side’s inaction and the other’s legitimate reliance,” which bars “long-dormant claims
for equitable relief.”26 The Court noted that laches barred the Oneidas’ claim not only
because of the passage of time between the wrong committed and the claim for relief, but
also because of the intervening change in the value and character of the land in question.27
The Court next ruled that, regardless of whether the original conveyance was lawful
or not, the Oneidas had acquiesced over the last 200 years in the possession of the lands
by other parties, creating reasonable expectations among surrounding communities
regarding who has the right to exercise regulatory control over the lands in question.
Consequently, the Court ruled, “Parcel-by-parcel revival of their sovereign status, given
the extraordinary passage of time, would dishonor ‘the historic wisdom of repose.’”28
Finally, the majority cited the doctrine of impracticality as a bar to the Oneidas’
claim, holding that allowing the Oneidas to unilaterally reassert regulatory control over
former reservation lands simply by repurchasing them “would have disruptive practical
consequences.”29 The Court noted that both the City of Sherrill and Oneida County are
“today overwhelmingly populated by non-Indians,” and that ruling in favor of the Oneidas
would allow tribes to unilaterally create “a checkerboard of alternating state and tribal
jurisdiction in New York State.”30 The Court then pointed out that Congress had
considered the practical difficulties of such an arrangement, and for that reason had
Oneida County v. Oneida Indian Nation, 470 U.S. 226, 253, note 27 (1985).
Sherrill, slip. op., at 13-14. The Court cast the Oneidas’ claim as one for equitable relief in
another portion of the majority opinion as well: “In contrast to Oneida I and Oneida II, [the
Oneidas] sought equitable relief prohibiting, currently and in the future, the imposition of
property taxes.” Sherrill, slip. op. at 11.
Id. at 17.
Id. at 19 (quoting Oneida County v. Oneida Indian Nation, 470 U.S. 226, 262 (1985)(Stevens,
J., dissenting in part)).
Sherrill, slip. op. at 19.
Id. at 20.
created a process for taking land into trust for Indian tribes.31 It is this statutory
procedure, the Court found, that is the Oneidas’ proper avenue for acquiring lands that
will be free from state and local taxation.32
While the Supreme Court did not directly address Cayuga Indian Nation, the
majority’s opinion leaves little doubt that the Court was looking beyond state and
municipal taxation to questions of general regulatory authority. As the Court put it, “If
[the Oneidas] may unilaterally reassert sovereign control and remove these parcels from
the local tax rolls, little would prevent the Tribe from initiating a new generation of
litigation to free the parcels from local zoning or other regulatory controls that protect all
landowners in the area.”33 The Court indicated the broad reach of its rationale at the very
beginning of its opinion:
Given the longstanding, distinctly non-Indian character of the area and its
inhabitants, the regulatory authority constantly exercised by New York State
and its counties and towns, and the Oneidas’ long delay in seeking judicial
relief against parties other than the United States, we hold that the Tribe cannot
unilaterally revive its ancient sovereignty, in whole or in part, over the parcels
at issue. The Oneidas long ago relinquished the reins of government and
cannot regain them through open-market purchases from current titleholders.34
It is unlikely that Cayuga Indian Nation or any other opinion like it could stand
against the weight of the Court’s strong and clear direction with respect to New York
tribes’ attempts to reassert sovereignty over former tribal lands by merely purchasing
them on the open market.
It does not appear that the ruling will have any effect on the various claims for
monetary compensation springing from the Supreme Court’s 1985 ruling. The Court
seemed concerned only with tribal attempts to shield newly acquired lands from state
See 25 U.S.C. § 465.
Sherrill, slip. op. at 21.
Id. at 20. In his dissent, Justice Stevens intimated that the majority’s fear of opening a
pandora’s box with respect to other regulatory issues may have motivated the Court’s decision.
Id., Justice Stevens dissent, at 5 (“I would not decide this case on the basis of speculation about
what may happen in future litigation over other regulatory issues”).
Sherrill, slip. op. at 2.
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