ONEIDA INDIAN NATION v. COUNTY OF ONEIDA

Argument of Jeremiah Jochnowitz

Chief Justice Warren E. Burger: We will resume arguments in Number 72-851.

You may continue.

Mr. Jeremiah Jochnowitz: Mr. Chief Justice and may it please the Court.

When the red light went on yesterday, we were talking about Sections 31 (a), 1331 (a) and 1362 being empower material.

I maintained that if the well preeded complaint rule is applicable to 1331(a), it must also be applicable to 1362.

As a matter of fact, the Senate Report and I have got a quote here from it that was made at the time of the enactment of these bills and House Report constrains similar language says, the purpose of the bill as a mandate is to permit Indian Tribes to bring civil actions arising onto the constitution, treaties and laws of the United States without regard to the $10,000 limitation and accordingly amended Chapter 85 Title 28, United States Code by adding a new section.

Now, the same report and I have got it in as an appendix to my brief, states that the reason this was necessary or came about was a Federal case Yoder against Assiniboine.

339 F2 360.

In that case, the court held there was a question, but because the jurisdictional amount wasn't met, the claim was dismissed and it was because of the Yoda case that they felt it was necessary to amend the law by giving the Indians the right to sue where the amount was less than 10000 since most of the Indians claims, being individual, were less than 10000 and it couldn't group for more of them to get jurisdiction.

Now yesterday, Your Honors went into the question of whether plaintiffs have a right to sue in New York State.

It is our contention that plaintiffs do have a right to sue New York State, that is they have standing.

We don't concede that they have a case in this.

Now, plaintiffs say that they don't have this right.

We maintain that New York State's Indian laws Sections 5 and 11 (a), give them that right to sue a New York State.

Justice William H. Rehnquist: Mr. Jochnowitz?

Mr. Jeremiah Jochnowitz: Yes.

Justice William H. Rehnquist: Is it enough that New York State's Indian law gives the petitioners here the right to sue or do you would have to show it to the Federal law, gives new York courts the ability to entertain such as --?

Mr. Jeremiah Jochnowitz: Right now, I have made question.

I think I call your attention to the Seneca versus Christy case in 1891.

In Seneca versus Christy, the Seneca Nation sued.

They had been given special permission by a New York State statute to sue.

Now, New York state upheld their right to sue, but decided against them.

If decided against them first on two -- first on a question of the Indian Nonintercourse Act.

It stated that the original Act passed in 1790 contained a statement, “Any state whether having the right of preemption to such grants were not -- was banned.

The 1790 -- they went in under 1890, 1800 something statute.

Ours is the 1793 statute, but both had this portion deleted and the New York State Court Of Appeals at that time held that the deletion of these words indicated that the Congress intended that the Preemption State should not be barred from having deals with the Indians and this, as a matter of fact, the Christy case shows New York followed for over a hundred years.

Now the second reason why the Indians were denied relief in New York was the statute of imitations.

The Act which they sued under said, they could sue to the same extent as other persons and statute of imitations is bar for anybody who brings his action too late and they had.

Now there is similar wording in New York state in the Indian Law, Section 5.

Now, Seneca was appealed to the United Sates Supreme Court and the United States Supreme Court held that it was decided on two issues.

One of them, the Federal Question, the first question which I discussed and the second limitations which was a State Question and it's said, since it could be maintained under the State question, the decision of the Court of Appeals would not be vacated and so in Seneca, in the Seneca case, I say this court has already ruled that when New York State brands the right sue, there isn't a right to sue.

Now, Indian Law Section 5 was first enacted in 1902, that was right after the Seneca case, 1892 rather.

In 1892, the New York State Land Commission acting through the Attorney General issued an opinion stating that the law gives the Indians the right to rejectment [to the same extent as other citizens].

Here the action is basically an ejectment action and in an ejectment action the right is based on the right to possession of property.

Here the right to -- to damages would only be because they were being denied possession.

In other words they must have had a right to possession.

Now in the petition for certiorari, the proponent give excerpts from an affidavit by Donald C. Grennan (ph) an Assistant Attorney General and in that case he took the position at that time that there was no capacity to sue in New York State.

However, that was our position only in the Court of Claims.

That position we changed and because we found we were wrong and in the Court of Appeals' opinion it says as follows on appeal -- and that is St. Regis v. State of New York, 5 New York 224 and it is on page 35.

On this appeal the State concedes that the claimants have capacity to sue.

They do not argue there is a defect in indispensable parties.

Justice William J. Brennan: Is it cited in your brief?

Mr. Jeremiah Jochnowitz: St. Regis is cited in my brief, here.

Now if they sue under New York State Law there is a possibility of the defense of the statue of limitation.

As matter of fact standing to sue -- to sue does mean that they are going to win.

They are going to -- if they sue in State of New York, we are going to fight like the duce to keep them from winning and I think we have grounds, the merits of this, but we would not raise if they brought an action against the State in the Court of Claims, we would not raise the question of standing.

I have been authorized to say this by the Solicitor General of the State of New York.

Now in the brief plaintiffs contend further that the New York State -- that the right to sue was brought about because of 25 U.S.C. 233.

Now 25 U.S.C. 233 they say and it does, contains a limitation that the right to sue is for actions and events transpiring after September 13, 1972.

Well!

let us say assuming they are right, what are they suing for here?

Rent, damages in a form of rent that occurred after January 1, 1968, a course of action accrues after the deadline date of 1952 so even under their own interpretation of the statute they have no right to be here and we also maintain that 25 U.S.C. made it mandatory for New York Sate to permit Indians to sue in their state for events that occurred after September 13, 1952, but it didn't prevent us from giving them the right to sue for events that occurred prior to this.

This we say we could do and that we did, we did do it and this we say your Court has held we could do in the case of Seneca versus Christy.

Now plaintiffs here state that Indian Law Section 11A and that is the law that says not only do Indians have the right to sue but Indian Tribes and Indian Bands have the right to sue in New York was passed as a result of 25 U.S.C.233, in this they are wrong.

This is not the section that was passed.

The section that was passed at the time of 233 was the amendment to Indian Law Section 5 and we have a letter that we cite the contents of it in our brief by the Attorney General of the State of New York to the government at the time that was being enacted and it says, “The bill will not take away jurisdiction from the Peacemakers' Court but will give the State Court's concurrent jurisdiction.”

This step is authorized by Congress if such authority was needed we question the need even then that of the authority to -- and we maintain that we could grant the authority and they refer to the Act of September 13, 1952, 25 U.S.C. 233 thus it was the amendment to Section 5.

Now Section 11A was passed in 1958.

This removes any doubt on their right to sue in that it has granted the right to not only to individual Indians, but Indian Tribes and Indian bands.

In other words, the -- whatever the status of an Indian Tribe is whether corporate or not corporate or whatever it is, New York State by Section 11A recognizes their right to sue.

We also say the action must be dismissed because there is another action pending at this time and the other action pending is the claim by the Indians before the Indian Commission that was cited in the court's result.

Now Your Honors were questioning my opponent here on whether why that wasn't a duplication of damages.

I do not see why it isn't.

He makes some sort of distinction.

He says that before the Indian Court of Claims all they could get is the damages they suffered at the time that the transaction was made, actually if they have.

United States has given them the right to sue for what they were damaged and if they have a right to sue for the damages it would be total damages including interest of interest are damages and if they suffered them.

Now, in Seneca versus United States, 173 Court of Claims 912 and in several other cases, the United States Court of Claims held that there is a claim in favor of Indians for -- under circumstances where the Indian Tribe sold land without being represented.

It however did not reach the question of whether New York State was bound by the Nonintercourse Act or not, it cited a number of authorities in the opinion which held otherwise, but did not reach a conclusion.

Now we also maintain here that the Eleventh Amendment is a defense.

The defendants here are the Counties of Oneida and Madison.

In the complaint it is alleged that the lands were used for the building roads and other public improvements.

The use of property by a county in the governmental capacity is protected by the Eleventh Amendment.

When a county does show it is acting for the State and as such it enjoys the State's immunity.

Justice William H. Rehnquist: What is the contention foreclosed by our against Moor against Alameda County decision last year?

Did not we say that the county does partake in the State's immunity enough to invoke the Eleventh Amendment and cite some old cases of this Court.

Mr. Jeremiah Jochnowitz: I am not sure Your Honor.

And certainly if the Eleventh Amendment is a defense here then the Indians who come in under the theory of either as showing the state would be either a citizen of this State or a citizen of Wisconsin, in either case under the Carden case they could not sue.

Now we also maintain here and this probably would only go in the event Your Honors would decide that they have original jurisdiction on a question of 1362 and might be referred back to the Circuit Court that the complaint does not state a cause of action and one of the things I want to call to Your Honors' attention is that the -- there was a substantial difference as it was cited in Seneca -- the Christy -- in the Christy case between the law of 1790 and the law of 1793.

The law of 1790 was specifically forbids the states having the right of preemption to enter into agreement.

The law of 1793 which was a law in effect at the time this transaction was made had that portion deleted.

It did not contain this Band.

Now New York State as was shown in Christy made 39 treaties during that period of time after the law of 1793 went into effect and only five of them didn't have a Federal Commission of (Inaudible).

Now the United State recognized this.

The United States in many cases granted substitute grants to the Indians who had sold to the United States, they passively approve this.

The Indians made no complaint.

We have almost 200 years that have gone by and a practical construction such as we had here which the parties have undertaken for such a long period of time should not be changed even if there is an equally tenable interpretation the other way.

In the instance case I say this is very necessary because if we follow through the fruits of a decision against us we would really have an economic upheaval in all of the preemption states where deals were made for the purchase of land probably about 200 years ago and it would be upsetting titles all over the eastern part of the country, thank you.

Chief Justice Warren E. Burger: Thank you Mr. Jochnowitz.

Mr. Shattuck you have about 10 minutes right.

You can use it.

Argument of George C. Shattuck

Mr. George C. Shattuck: Your Honor I --

Mr. Chief Justice and may it please the Court.

I won't use my 10 minutes here really.

I have a very short concluding statement to make.

As I listen to my brothers here, and as I listen to the questions that the Court directed to me yesterday, I have this to say that when you boil this case all down, the only question for this Court to decide is whether lack of possession will bar United Indians and other Indians throughout the United States from Federal Court.

Three treaties, Federal Statutes and specific words of President George Washington to the 6 nations have promised possession to Oneidas and the other six nations.

The first President in 1790 said to the Senecas on behalf of the six nations, “The general government will never consent to you have been defrauded, but it will protect you in all your just rights.”

Further on in the same speech, President Washington in a slightly different context I must admit when he did say to the Senecas that the Federal Courts will be open to you for your just claims or words to that effect.

The speech is printed in our brief.

Now all the Oneidas want is a fair hearing and to me under the very singular facts, treaties and laws present in this case, a hearing should be available to them even under the most restrictive interpretation of Section 1331 and certainly under the broader meaning given to Section 1362 in Congress in 1966.

If there aren't any further questions from court?

Chief Justice Warren E. Burger: No, thank you.

Thank you gentlemen.

The case is submitted.