In 2005’s City of Sherrill v. Oneida Indian Nation of New York decision, the Supreme Court rewrote the rules on ”ancient” tribal claims to sovereignty by allowing – for the first time in recent memory – states and local governments opposing tribal sovereignty and Indian tribes to raise equitable defenses. In other words, the court held that the nation (and the United States) waited too long to bring their claims.
Although Sherrill did not adjudicate an Indian land claim (it had already been settled), the 2nd Circuit relied upon the decision as the basis for dismissing land claims in Cayuga Indian Nation v. Pataki, claims valued at hundreds of millions of dollars. The state of New York and its subdivisions now argue in every land-claims pleading that too much time has passed to restore tribal sovereignty and Indian lands. It seems certain that tribes bringing land claims and other longstanding claims to sovereignty must traverse this new (and hostile) world of equitable defenses in order to prevail. The very notion of an Indian land claim may soon disappear. States and local governments may have found their trump card in dealing with the troublesome tribal claims to land and sovereignty.
But the opponents of tribal land claims may be too smart for their own good. The dismissal of Indian land claims on the basis that too much time has passed since the transactions in which Indian land ownership passed into the hands of non-Indians and non-tribal governments may reduce state and local government liability, but the liability could shift to the federal government. Thousands of Indian land claims involving millions upon millions of acres now lay dormant, preserved in accordance with a 1982 federal statute (28 U.S.C. ? 2415(b)), waiting to be activated and prosecuted by the Department of Justice. Many, if not the vast majority, of these land claims are based upon events that transpired long ago and could be subject to the equitable defenses that the Sherrill Supreme Court held could be applied to ”ancient” tribal claims. If these claims are barred by the passage of time, it will be because of the failure of the United States to prosecute the land claims. As a result, the United States will be liable to the Indian tribes who lost out on their land claims. Tens of billions of dollars – perhaps hundreds of billions of dollars – are at risk as a direct result of the Sherrill and Cayuga cases.
Consider an older case. In 1968, the Supreme Court decided Menominee Tribe of Indians v. United States. The posture of the case was most unusual in that both the named parties – the tribe and the government – asked the court to affirm a Court of Claims ruling. The state of Wisconsin, appearing as amicus curiae, was the only party arguing in favor of reversal.
The case arose when Congress enacted the Menominee Termination Act of 1954, disbanding the tribal government and transferring the tribe’s assets to a private corporation owned and operated by the tribal members. Menominees continued to exercise their hunting and fishing rights guaranteed by the 1854 Treaty of Wolf River, however, and the state began to enforce its laws and regulations on them, culminating in a Wisconsin Supreme Court decision holding that the 1954 termination act had abrogated the 1854 treaty rights. The tribe then turned to the federal claims courts and sought just compensation under the Fifth Amendment against the United States for the loss of the treaty-protected hunting and fishing rights.
The Court of Claims held that the tribe wasn’t entitled to compensation because the treaty rights had not been abrogated, leading to the unusual posture of the argument before the Supreme Court, with the United States hoping to avoid liability by convincing the sourt to strike down the Wisconsin Supreme Court’s decision.
There are reasons to believe that same scenario will play out in the context of Indian land claims barred by equitable defenses – and perhaps it will play out that way in hundreds or even thousands of cases. First, in these cases, the basis for bringing a land claim is a violation of a federal statute or an Indian treaty provision. The New York land claims, for example, arise under the Trade and Intercourse Act, where the federal government had a duty to prevent – and if not prevent, then to seek a reversal of – the underlying transactions leading to the land claims. In the case of land claims arising out of treaty provisions, the claims are based on a treaty provision that places an affirmative mandate upon the federal government to prevent the dispossession of Indian lands. In many, many circumstances, federal government officials participated in the acts of dispossession – clear acts of illegality. Second, given that the federal government often is the only party capable of suing to recover Indian lands or to seek compensation because of state sovereign immunity, the equitable defense applies against the government for failure to act. In effect, the federal government is at fault and therefore culpable.
Moreover, before any tribe can proceed with a claim under Section 2415, the federal government must exercise discretion in determining whether or not to prosecute the claim on behalf of the tribe. In other words, each Section 2415 claim places a strict duty on the federal government. Since 1983, when the government published the land claims in the Federal Register, the Department of Justice has chosen to take up only a few.
More than two decades have passed since the government published the land claims. Given the harshness of the equity rules announced by federal courts, it may already be too late for the federal government to recover. The time bomb is ticking. Federal government liability may be accruing this moment and tribal advocates should be aware of their alternate route to restitution for the dispossession of their lands.
Matthew L.M. Fletcher, Grand Traverse Band of Ottawa and Chippewa Indians, is director of the Indigenous Law and Policy Center at Michigan State University.
