Academic journal article Brigham Young University Law Review

The Reports of Our Death Are Greatly Exaggerated- Reflections on the Resilience of the Oneida Indian Nation of New York

Academic journal article Brigham Young University Law Review

The Reports of Our Death Are Greatly Exaggerated- Reflections on the Resilience of the Oneida Indian Nation of New York

Article excerpt

I. Introduction

In her 2005 opinion for the Supreme Court in City of Sherrill v. Oneida Indian Nation of New York, Justice Ruth Bader Ginsburg wrote disparagingly of what she described as the efforts of the Oneida Nation to rekindle the "embers of sovereignty that long ago grew cold."1 The Court rejected the Nation's claim of a tax exemption for reservation land without directly addressing a basic principle of federal Indian law: tribal land within the boundaries of a treatyguaranteed reservation is not subject to state and local taxation.

Among the reasons that Justice Ginsburg gave for the Court's decision was the disruption to the status quo that would arise from protecting the land from taxation, as well as from other assertions of sovereignty that she predicted the Nation eventually would make. Absent from her analysis was an admission that the status quo arose from illegal conduct by the State of New York. Starting in the eighteenth century, the State acquired Oneida land through exploitative and in some cases fraudulent transactions, in defiance of federal law. It is as if Justice Ginsburg looked at the non-Indian governmental apparatus that had been built on the foundations of the State's unlawful actions and acted out of fear that oneida assertions of sovereignty might burn it all down.

when Professor Steele invited me to speak in this symposium focusing on the resilience and endurance of tribes and tribal institutions, the struggle of the Oneida Indian Nation of New York for full recognition of its preconstitutional sovereignty immediately came to mind. The Nation continues to exist despite over two hundred years of efforts to erase its presence from the center of New York State. Retaining core aspects of tribal governance, the Nation has not only survived but also developed successful businesses that make an important contribution to the region's economy. Tribal government buildings and commercial enterprises today are situated on reservation land that was expropriated by New York State and repurchased by the Nation in the past few decades.

Undeterred by the outcome of the Sherrill decision, the Nation successfully applied to have reservation land taken into trust by the federal government, thus putting the land's status as sovereign, tribal land beyond question.2 The Nation reached an agreement with the State and with Madison and Oneida Counties on outstanding legal issues in 2013.3 This agreement, as Oneida leaders have said, reflects the peace and friendship envisioned by the 1794 Treaty of Canandaigua between the Oneidas and other Six Nations tribes and the United States.4

What can the Oneida Nation's experiences teach us about tribal resilience? The answer, in short, is a great deal, as indicated by the following words of Professor John Tahsuda: "The history of the Oneida people is in many ways a microcosm of the history of indigenous peoples around the world. Originally a flourishing society, the Oneidas have traveled the road to near extinction and back. Ultimately, they evolved into a positive political and economic force."5

In short, the Oneidas have shown exemplary resilience in the face of formidable challenges, including threats to their very survival as a nation.

This Article examines the historical and contemporary experiences of the Oneida Indian Nation of New York in its dealings with New York State and its non-Indian citizens. Three themes, apparent at different times and taking shape in different ways, emerge from this examination. These themes resemble musical refrains -oftrepeated messages, conveyed by the State and its citizens to the Nation, like discordant sounds from a broken record:

1. What's yours is ours.

2. Surrender your sovereignty-resistance is futile.

3. By surviving as a people, you are spoiling our plans.

Boiling down the Nation's legal and political encounters with New York State to this basic level serves to highlight the blatant self-interest, and the settler colonialism, that are at the heart of it all, regardless of how much the State-at times aided and abetted by the Supreme Court-tries to hide behind legal niceties. …

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