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FROM: INDIAN COUNTRY TODAY NEWSPAPER

http://www.indiancountry.com/content.cfm?id=1096411099

No checkered flag for Oneidas

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Posted: June 17, 2005
by: Tom Wanamaker / Indian Country Today

Analysis

ONEIDA NATION HOMELANDS, N.Y. - With all of today's slick computerized video
games getting so much attention, we sometimes forget that simpler board games
like checkers are still around. But the form of checkers most recently played
in Indian country by the U.S. Supreme Court has much more serious implications
than the kids' game with its dozen discs, alternating colored squares, jumps
and kings.

''Checkerboarding,'' a practice used to break up Indian reservations in the
late 19th century, has returned with a new twist likely to make it more harmful
to Indian governments and their sovereignty than ever before.

In 1887, President Grover Cleveland signed into law the General Allotment
Act, also known as the ''Dawes Act.'' This legislation provided for the
allocation of 86 million acres of reservation land to individual Indians - 160-acre
plots to heads of households, 80-acre tracts to single adults, and 40-acre plots
to minors under age 18.

The idea was to remake Indians into farmers and simultaneously destroy the
common tribal practice of holding land communally. It mattered little that most
Indians at the time had no interest in agriculture or that the land allotted
to them was of poor quality. Land not allocated to Indians was sold to
non-Indians as ''surplus'' - the resultant alternation of Indian and non-Indian lands
gave rise to the checkerboard metaphor. Allotment finally came to a halt with
the Indian Reorganization Act of 1934.

In y of Sherrill v. Oneida Indian Nation of N.Y. Supreme Court's ruling can
be boiled down to a basic hypocrisy. The practice of checkerboarding Indian
land was not only permissible but encouraged when practiced by the federal
government at the turn of the 20th century. Today, however, when a recognized tribal
government with a legitimate land claim tries to reacquire land from willing
sellers, the resultant checkerboard pattern of Indian land ownership has
somehow become detrimental to the undefined ''common good.''

This supposed detrimentality is espoused in the majority (8 - 1) opinion,
penned by Justice Ruth Bader Ginsburg. She wrote, ''A checkerboard of alternating
state and tribal jurisdiction in New York state - created unilaterally at
[the Oneida Nation]'s behest - would 'seriously burden the administration of
state and local governments' and would adversely affect landowners neighboring the
tribal patches.'' This statement has no basis in fact.

First of all, the Oneida Nation did not create this situation
''unilaterally.'' The nation is attempting to reassert its sovereignty over land illegally
taken from it by New York state, with the acquiescence of the federal
government, 200 years ago. The Supreme Court itself recognized the legitimacy of the
Oneida Nation's claim to its original reservation in 1985.

Secondly, Ginsburg never explained exactly how checkerboard land ownership by
the Oneida Nation is in fact injurious to non-Indian neighbors. The ideas of
''disruption'' and ''adverse affects'' are repeated in various forms
throughout the decision, but nowhere does the majority explain how or why Oneida tribal
sovereignty over its own court-recognized reservation is in fact
''disruptive'' to lands and peoples outside its boundaries. Simply repeating something
over and over again does not make it true.

Elsewhere we examine the nation's economic and philanthropic contributions to
the region - activities indicating that not only does the nation have a
vested interest in the economic health of its homeland, but also that it has gone
out of its way to assist its non-Indian neighbors. Yet the court inexplicably
believes that if the Oneidas were to ''assert 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.''

As the court itself noted, the Oneida Nation's land holdings, some 17,000
acres in Madison and Oneida counties, represent ''less than 1.5 percent of the
counties' total area.'' This statement alone refutes the idea that Oneida
sovereignty would somehow ''disrupt'' local governance. Not only does the nation
boast an accredited police force, it has adopted a regulatory regime that meets
or exceeds all applicable local, state and federal ordinances.

Yes, the nation already has its own regulatory controls, and adjacent
landowners need no ''protection'' from a tribal government that has amply
demonstrated its willingness and ability to be a good neighbor.

Do Ginsburg and her majority colleagues really mean to imply that the Oneida
Nation, despite maintaining a functioning government that is older by
centuries than that of the United States, New York state or any local municipality, is
incapable of governing and regulating itself? Such notions of cultural
superiority are abhorrent.

The March 29 ruling appears to condone a double standard. Ginsburg wrote,
''This court has recognized the impracticability of returning to Indian control
land that generations earlier passed into numerous private hands.'' On the one
hand, the court claims that checkerboarding is disruptive and cannot be
allowed. On the other, it states that tribes whose land was stolen from them
(through checkerboarding and other means) cannot regain them because they've been
checkerboarded into ''numerous private hands.'' Had author Joseph Heller been
able to work this situation into the plot of his classic 1955 novel ''Catch-22,''
there's no doubt he would have.

The only voice of reason in the Sherrill decision comes in Justice John Paul
Stevens' dissenting opinion, who calls the majority opinion ''a novel
holding'' that ''venture[s] into legal territory that belongs to Congress.'' Justice
Stevens argues two ''bedrock'' principles of Indian law - that only Congress
has the authority to reduce or disestablish a tribal reservation and that
recognized tribes enjoy immunity from local and state taxation of reservation land
unless that immunity is specifically taken away by Congress.

Stevens makes another important point. He calls it ''perverse'' to rule that
the passage of two centuries does not preclude the nation from gaining damages
to remedy ''ancient wrongs,'' while simultaneously stripping the nation of
its immunity from local and state taxation because too much time had passed
since the Oneida last exercised sovereignty over its reservation. The dissenting
justice observed that the land has been reacquired peacefully and lawfully in a
manner that respected the interests of innocent landowners.

''To now deny the tribe its right to tax immunity - at once the most
fundamental of tribal rights and the least disruptive to other sovereigns - is not
only inequitable, but also irreconcilable with the principle that only Congress
may abrogate or extinguish tribal sovereignty,'' Stevens wrote, adding that it
is ''pellucidly clear'' that under ''settled law'' the city of Sherrill may
not tax reservation land.

The court's holding that the Oneida Nation's reassertion of sovereignty over
its reacquired reservation lands is automatically ''disruptive'' to local
governments is absurd. One need only look at the Cahuilla Indians in southern
California for examples of how checkerboarded jurisdictions can work. The nine
bands of the Cahuilla have nine separate reservations scattered throughout the
Coachella Valley; as a result of the Dawes Act, most of these remain
checkerboarded to this day.

For example, under Dawes the Agua Caliente Band was allotted 32,000 acres of
noncontiguous land, comprised of the even-numbered sections resulting from a
land survey. Of this land, 10,700 acres lies within the city of Palm Springs
while the rest is spread out throughout adjacent desert and mountainous land.

By all accounts, the band and the surrounding municipal governments enjoy
positive working relationships. There is no ''disruption,'' no ''serious burden
[on] the administration of state and local governments,'' as the Supreme Court
would like us to believe. This isn't to say that tribal and local governments
in the Coachella Valley may not disagree from time to time. But when disputes
arise they communicate, they respect each other's sovereignty and they work
within a government-to-government framework to get problems solved to benefit
all of their constituents.

It is unfortunate that the atmosphere in central New York has become so
poisoned with inflammatory anti-Indian rhetoric that similar
government-to-government relationships, based upon mutual respect, have not prospered. Furthermore,
it is deplorable that a majority of the Supreme Court decided to usurp
Congressional authority and stick a knife straight into the heart of justice.

__________________
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