Joseph W. Singer, Nine-Tenths of the Law: Title, Possession & Sacred Obligations, 38 Conn. L. Rev. 605 (2006).
Abstract: As part of a symposium celebrating the publication of the 2005 edition of Cohen's Handbook of Federal Indian Law, this article examines the Supreme Court's recent opinion in City of Sherrill v. Oneida Indian Nation of New York, which held that the Oneida Nation is subject to local property taxation when it reacquires land from a non-Indian possessor even though the Oneida Nation had never lost the title to that land. A federal statute passed in 1790 and still in effect today (called the Nonintercourse Act) prohibits the alienation of Indian lands without the consent of the United States. In 1795, the State of New York illegally took lands belonging to the Oneida Indian Nation, and under the Nonintercourse Act, the transfer of title was not valid. When the Oneida Nation repurchased the land, it argued that it had united title and possession, that the land had been Indian country and that Congress had never extinguished the tribal title or diminished the Oneida Reservation, and that the land therefore was subject to tribal sovereignty and immune from local property taxation. The Supreme Court rejected the claim on the ground that the Oneida Nation had waited too long to sue and that reliance interests had developed on the part of non-Indian owners and the state, and these reliance interests must be protected to prevent the piecemeal loss of state sovereignty to the Haudenosaunee nations. This article criticizes the Supreme Court's ruling by arguing that it is wrong to blame the Oneida Nation for failing to sue to recover its lands until 1970 when more than half a dozen jurisdictional (and other) legal barriers barred suit until 1966 and would even bar the lawsuit today. Further, the Court adds insult to injury by blaming the Oneida Nation for the failure of the United States to act expeditiously to protect its rights under the Nonintercourse Act and under the trust obligation of the United States toward the Oneida Nation. The Supreme Court's ignorance of these jurisdictional barriers (or unwillingness to focus on them) suggests the importance of the publication of the new edition of Cohen's Handbook.