In 1795, the homeland of the Oneida Indian Nation, located in upstate New York, was obtained by the State of New York in clear violation of federal law. Today, more than two centuries later, representatives of the state are trying to prevent the federal government from restoring a small part of that homeland to the Oneida.
Not a Jewish issue, some might argue. It should be, and not just because Jews ought be concerned when an injustice is perpetrated. As Jews, we should be troubled by the state’s position because our own history of resistance to forced assimilation asks of us special empathy with the Oneida.
The Oneidas’ saga is a long one. The Oneida Nation was one of the few Indian tribes allied with the Americans in the Revolutionary War, and actually brought crucial supplies to Washington’s troops when they were nearly too exhausted to continue at Valley Forge. In gratitude, the United States made treaties with the Oneida between 1784 and 1794, guaranteeing them peaceful enjoyment of their lands, which by this time had been reduced to 300,000 acres.
Even though a federal law prohibited land transfers from tribes without the consent of the United States, New York made an illegal treaty with the nation in 1795 that gave the state nearly all of the 300,000 acres. Over the next 150 years, despite their lack of familiarity with the non-Indian legal system and their shortage of resources, the Oneidas tried to raise legal objections to the transfer and to regain their lands. They were stymied, however, at every turn.
The United States failed to sue New York on their behalf, the federal courts indicated that tribes lacked capacity to sue on their own, and the state courts were completely unreceptive to lawsuits against the state. In the 1960s, tribes were finally able to get a clear mandate from Congress to litigate federal claims in federal court, and with the advent of federally funded legal services, they were able to get representation. Shortly thereafter, the Oneida filed their land claim, seeking money for the trespass to their lands over so many years.
While that lawsuit was pending, the Oneida were able to establish a thriving resort and casino on their tiny plot of remaining land. With funds from that enterprise, they have been trying to buy back their ancient homeland, focusing on parcels within the territory guaranteed to them in their treaties 200 years ago — land which had never been extinguished as their reservation.
For these parcels to make up a homeland, however, the Oneida need more than ownership of the tracts. They need recognition as the governmental power over those lands. Only as a government can they advance their own goals regarding environmental protection, child welfare and preservation of their burial grounds and other culturally significant places, among other matters. These lands have deep significance within Oneida culture, as the sites of important events in their history and narratives, giving meaning to their world.
It is established federal law that Indian nations are governments exercising inherent powers that predate the United States, at least until the United States clearly curtails those powers. So initially, the Oneida believed that once they reacquired land within their reservation, they would automatically receive federal and state recognition of their governmental powers. When the City of Sherrill in upstate New York tried to tax some of those reacquired lands, the Oneida refused and brought suit to establish that just as New York can’t tax California, it can’t tax an Indian nation.
In a 2005 decision harshly criticized by legal scholars, the Supreme Court ruled that the Oneida Indian Nation had waited too long to assert their governmental status on their own lands, even though this issue had not been briefed or argued in front of the court. In the court’s view, upholding the Oneidas’ claim would be too disruptive to surrounding communities and landholders, even if the title of those landholders was invalid.
But while the court’s decision was questionable, the state’s position could only be described as chutzpah. The state had wrongfully taken land from the Oneidas and refused to entertain their legal claims, and then had the gall to argue in front of the Supreme Court that its longstanding presence on those lands justifies denying the Oneidas their homeland.
Part of the reason the court was reluctant to intervene is that there is a federal political process available to confirm tribal governments’ powers over particular lands, known as the “land into trust” process. Once the federal government accepts title to Indian lands as trustee for their benefit, federal law says that tribal and federal authority displace most state authority on those lands.
So the Oneida, determined to regain their homeland, have now patiently petitioned the Department of the Interior to take their lands into trust. In a letter to the secretary of interior, Senator Charles Schumer has argued against this action, placing heavy reliance on the Supreme Court’s decision in the City of Sherrill case.
In its 2005 decision, however, the court was deferring to the political process — not trying to preempt it. Federal regulations make it much easier for tribes to put land already within their existing reservation boundaries into trust, precisely because so much injustice has surrounded the loss of such lands.
The Oneida are prepared to work with the surrounding communities to coordinate governmental services and land-use decisions. But they want to do so from their rightful position as the government within their homeland — something we, as Jews, should be able to understand.
Carole Goldberg, a professor of law, is director of the program in law and American Indian studies at the University of California at Los Angeles. Joseph Singer is a professor of law at Harvard University. They are co-editors of “Felix Cohen’s Handbook of Federal Indian Law” (LexisNexis, 2005).