Academic journal article Albany Law Review

One Nation, Indivisible: American "Indian Country" in the Wake of City of Sherrill V. Oneida Indian Nation

Academic journal article Albany Law Review

One Nation, Indivisible: American "Indian Country" in the Wake of City of Sherrill V. Oneida Indian Nation

Article excerpt

I. INTRODUCTION

In an age where patriotism and national unity are stressed in this proud "melting pot," it can be difficult to remember that the United States was once entirely subject to the dominion of native tribes. (1) Since the time when manifest destiny pushed European Americans westward, the land controlled by American Indians has diminished to a mere sliver of what it once was, as various instruments set aside reservations, allotments, and individual parcels along the countryside that was to be settled by non-Indians. Today, many such holdings exist as relatively small but separate sovereigns within this one nation. (2)

"Indian country" is broadly defined as "land within the limits of any Indian reservation [or allotment] under the jurisdiction of the United States," (3) a definition which has been evolving since the colonies were first settled by Europeans. (4) Originally, during the colonial period, the term "Indian country" referred to the separate territory that was occupied by the Indian tribes. (5) It was later used in the Trade and Intercourse Act to define the purely geographic scope of Indian dominion. (6) Practically speaking, however, the term "Indian country" in present day politics refers to land which, though subject to federal jurisdiction, is recognized as existing under the sovereign authority of tribal government and is exempt from state and municipal taxation. (7) This includes "formal and informal reservations, dependent Indian communities, and Indian allotments." (8) Further, it has been firmly established that the power to modify the status of land determined to be an Indian Reservation lies only with Congress through the Commerce Clause in Article I, Section 8 of the United States Constitution. (9)

Since the middle of the last century, tribes across the nation have brought actions to reclaim and preserve lands set aside for tribal use by the United States government or its colonial predecessor. (10) These actions have ranged from petitions for the ejectment of non-Indian residents and reversion of the land to Indian control, (11) to petitions for the payment of monetary damages for the occupation of Indian land in violation of eighteenth century treaties (12) and for the recognition of the sovereign status of ancestral lands purchased on the open market after 200 years under non-Indian jurisdiction. (13)

In the recent decision of City of Sherrill v. Oneida Indian Nation, which addressed the taxable status of Indian-owned land located within the tribe's original reservation, (14) the United States Supreme Court has changed the legal landscape for the acquisition of tribal lands as Indian country. In its attempt to balance the interests of both state and tribal governments, the Court has forgotten the role of Congress in properly dealing with Indian affairs. (15) In essence, the Court has afforded itself the ability to expand or diminish Indian lands in a manner that may contradict both legislative intent as well as the Court's own intent in ruling as it did. (16)

In Part II, this Note will outline the specific history behind the

Oneida land claim, which concerns the status of once-reserved Indian land that 200 years ago was sold to non-Indians, only recently to be repurchased by the Oneidas. (17) Part III puts forth that the logic of the decision in City of Sherrill is inconsistent with judicial precedent and intent, inasmuch as it would theoretically allow for an undivided mass of land purchased on the open market to be regarded as Indian country because it would not pose as significant of a burden on the administration of state regulatory authority. Part IV will further assert that the logic of the Supreme Court in City of Sherrill is inconsistent with the current policy regarding Indian sovereignty as embodied by the Dawes Act of 1887, (18) the federal provision relating to acquisition of Indian lands as codified in 25 U.S.C. [section] 465, (19) and section 383 of the New York Executive Law passed pursuant to the Indian Gaming Regulatory Act. …

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