The late, great Warren Zevon, probably the only rock star ever to write a song about Indian gaming (1995’s “Seminole Bingo”), more famously wrote “Lawyers, Gun and Money,” a jaunty tale of a ne’er-do-well in need of the aforementioned, as “the s**t has hit the fan.”
In an ironic twist the cynical Zevon would surely have appreciated, it is now – in light of the Supreme Court’s recent City of Sherrill v. Oneida Indian Nation of N.Y. decision against the Oneida Nation – non-Indian politicians who are crying out for lawyers, guns and money as they seek to repossess Indian lands, assert criminal jurisdiction over them and collect taxes on them. It is now Indian sovereignty that has hit the fan.
For those unfamiliar with the Supreme Court’s 8 – 1 outrage against the Oneida people, what happened is that the Oneida Nation, twice a victor in the same Supreme Court in their land claim, had, in the 35 years since the case was filed, sought to peacefully reacquire their lands on the open market. They bought back, from willing sellers in arms’-length exchanges, land within the boundaries of the reservation guaranteed to them in 1794 by George Washington himself.
Since the Supreme Court had clearly held that land transactions made without federal approval since that 1794 treaty were void and of no effect, the Oneidas naturally asserted sovereignty over the land they had reacquired. The federal court for the northern district of New York, the 2nd Circuit Court of Appeals and the Solicitor General of the United States all agreed this is what the treaty and the law required.
The Supreme Court had other ideas. Hearing the lawyer for the city that sought to tax Oneida land raise the specter of gas stations blowing up, since Indian governments could not in his view be trusted to regulate such things as public safety, the court asked if it wasn’t “chaotic,” “strange,” “very odd” and “terrible” to allow Oneida sovereignty over its own lands.
Seasoned observers of the court’s Indian law jurisprudence had hoped in the end for a “son of Kiowa” decision, the 1998 case which had grudgingly upheld tribal sovereign immunity. In Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., the court, though extremely disparaging of the doctrine of tribal sovereign immunity, held that it was nonetheless for Congress – not the courts – to extinguish the doctrine, and until it did, the courts had to uphold it.
What the Oneida people got instead in Sherrill, however, was “son of Oliphant,” the 1978 decision holding that just because the court said so, Indian tribes could not prosecute non-Indians for crimes against Indians or on Indian lands. In Sherrill, the court said essentially the same thing: it just wouldn’t do for Indians to upset the “justifiable expectations” of non-Indians and “seriously disrupt their lives.” Therefore, Sherrill is able to tax the Indian land which the very same court had said the city had illegally obtained many years before.
This is despite the fact that the federal government itself stood up in court and said it was Indian land and Congress had never changed its status. The Oneidas, to be sure, can still sue the state for money damages in the land claim, but putting the nation back in the position it was before its lands were illegally taken was more than non Indian sensitivities could stand.
I have often written that taking Indian cases to the Supreme Court is a dangerous game. Here, the Oneidas had no choice. The city of Sherrill foreclosed on their land and purported to transfer title away from the nation, thereby stealing it twice. The Oneida Nation was on the defensive, fighting to not have its lands taken away a second time. The Supreme Court, having twice upheld the Oneida land claim (in 1974 and 1985) based on the compelling power of the 1794 treaty and the lack of any federal action to diminish the Oneida reservation, would not reasonably have been expected to be so hostile to its own precedent and bedrock principles of Indian law.
The Sherrill decision was like Oliphant v. Suquamish Indian Tribe in another way: it wasn’t based in law. Neither case discussed prior cases much, nor dwelt on legal principles. Rather, the court sat in its ancient role of arbiter of Indian sovereignty, deciding with the stroke of the pen what Indian sovereignty is and isn’t, and what non Indians can tax, regulate or foreclose.
Luckily for Indian nations these days, the courts and Congress are not the only path. Due to the still-intact powers of sovereignty that render Indian nations largely free of state law and taxes, Indian nations have aggressively entered the marketplace – particularly through gaming.
As NIGA recently reported, Indian gaming is an $18.5 billion-a-year industry that has created over 553,000 jobs, mostly for non-Indians. Indian nations have in parallel with this also entered the capital markets in a big way, raising hundreds of millions of dollars through high yield bonds, tax exempt bonds and bank loan financings with all the major banks: J.P. Morgan Chase, CIBC, Merrill Lynch, Morgan Stanley, KeyBank, Citigroup, Wells Fargo, Deutsche Bank, CIT Group Inc. and others.
Yet this can be a delicate undertaking as well, as sovereignty is just as much challenged at the negotiating table as at the court bar. Keller George, Wolf Clan and Oneida Nation Men’s Council member, recently said as much at last year’s first-ever Tribal Wealth Conference at the Seminole Nation when he stood in front of a banquet hall full of bankers, lawyers and other advisors and told them: “You just don’t get it.” (See “Answering the call: Tribal wealth conference fosters cooperation,” by Jim Adams, Vol.
24, Iss. 25.)
Several other prominent Indian leaders, including Deron Marquez, chairman of the San Manuel Band of Mission Indians; Stuwart Paisano, governor of the Pueblo of Sandia; and Barry Snyder Sr., president of the Seneca Nation of Indians and chairman of Seneca Gaming Corp., will pick up this theme at a panel entitled “Tribes Talk Back: Indian County and Wall Street,” to be held at the upcoming Native American Finance Conference at Mohegan Sun June 27 – 29. These big guns will address the lawyers and the money, and make sure they do “get” what is at stake in Native economic development.
Indian nations in the past built vast and enduring alliances based on trade and commerce. With the courts now clearly turned against them, and the Supreme Court stating that the Oneida people could not “rekindle embers of sovereignty that long ago grew cold,” perhaps the markets are the clearest path to reinvigorating the great trading networks that once spanned the continent.
The Oneida people will, of course, survive the lawyers, guns and money arrayed against them; they have before. Becoming major players in the global financial marketplace is one path to get around the Supreme Court and its narrow ideas about American Indian sovereignty.