Oneida Nation Reacquired Lands Not Subject to Foreclosure Despite City of Sherrill Decision

In City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197 (2005), the United States Supreme Court held that that laches caused by the Nation’s long delay in reasserting its sovereignty over areas that had become dominantly non-Indian barred the Oneida Indian Nation from seeking relief against municipal property taxation of parcels within their original reservation reacquired through open market repurchase. Many thought that meant that municipalities would therefore be entitled to collect millions of dollars in property taxes from this gaming-wealthy tribe. Not so fast! Despite the Supreme Court ruling, a federal district court has now barred the municipalities from enforcing their property taxation claims against the Oneida Nation through the normal remedy for nonpayment of property taxes -- foreclosure actions. Thus, there appears to be more than one legal theory to arrive at a just result.

The relatively short district court relied on the Non-Intercourse Act, 25 U.S.C. § 177 (which forbids the transfer of title to tribal lands without Congressional approval), denials of due process, and traditional notions of tribal sovereign immunity to bolster its conclusion that the lands reacquired by the Nation were not subject to foreclosure proceedings. The district court concluded its opinion by noting:

In conclusion, it would be wise for all sides to ponder the words of President Abraham Lincoln in his annual message to Congress on December 1, 1862. The words still ring true today.

Fellow citizens, we cannot escape history. We . . . will be remembered in spite of ourselves. No personal significance, or insignificance can spare one or another of us. The . . . trial through which we pass, will light us down, in honor or dishonor, to the latest generation. . . . The dogmas of the quiet past, are inadequate to the . . . present. . . . We must think anew, and act anew. We must disenthrall ourselves.

If the last words are heeded, and the parties resolve the many land claim issues with good will and friendship between nations, the citizens of this time and place will be remembered by future generations with admiration and gratitude. In the alternative, future generations will still be coping with an endless stream of federal and state lawsuits, land claims, and land trust applications.

At least one member of the federal judiciary seems to understand the lessons of history. Too bad they have been lost on far too many other members of the federal judiciary. The brief opinion is available here.