Who is Melvin Phillips?

Plaintiff, Melvin L. Phillips, is a full-blooded Oneida Indian residing in the Town of Vernon, Oneida County, on untaxed state land where the Indian title has never been extinguished.  None of the Oneida Indian Tribes have applied to place the lands where Plaintiff Phillips and other members of his family live into federal trust status. Plaintiff Phillips is a direct descendant of the “home party” from the June 25, 1842 treaty with the Orchard Party, who chose not to leave the State of New York under the Treaty of Buffalo Creek in 1838 (Article XIII).  Plaintiff Phillips contends that the Oneida Indian Nation federal fee to trust application will destroy the more than two hundred year old trust relationship between the remaining Oneida residents of state land and the State of New York, and jeopardize his family’s continued presence there.  DOJ’s Prayer For Relief in 74-CV-187 submitted on August 3, 2001 notes the following:

  1.  For a declaratory judgment pursuant to 28 U.S.C.&2201 that the Oneida Nation has the right to occupy the lands described in this complaint that are currently occupied by the State of New York.
  2. For a judgment awarding monetary and possessory relief, including ejectment where appropriate, against the State of New York for those lands within the Claim Area for which the State claims title or control;

On February 24, 1982, Michael T. Smith submitted a Memorandum to the BIA’s Director, Office of Indian Services titled “Report on the History of the New York Oneida Indians”.  (Platkin cited it in his Memo).

G. Oneida at Marble Hill

In the early 1970’s, reasoning that since they are the “Oneida Nation of New York” they also have a right to use the 32 acre “Oneida Reservation” in Madison County, member of the Onondaga group moved on this land.  This was done to the consternation of some of those who were descended from the “Band” subject to the Boylan decision.  The unresolved question in this situation is: Did the Boylan decision, while reaffirming the existence of the Oneida Reservation and the Oneida Tribe, at the same time define the Oneida Tribe in New York as only the descendants of those band assigned to lost 17 and 19?  If so, then most of those who are referred to as Marble Hill Oneida and the Cloth Payment roll kept by Emily Johnson (William Rockwell’s successor in this position) should not be considered as “tribal Oneida”.

Not withstanding the above, most of the Marble Hill people are descendants of the “Home Parties” of the 1840’s.  Therefore, because their tribal affiliation can be traced to the three Home Parties of the 1840 treaties, they are the only historically identifiable “tribal” Oneidas in New York.  This is not to say that the Onondaga group are not Oneida.  They, however, are individual and not tribal.  They arrived on Onondaga as individuals or in small groups and not as recognized “bands” or “tribes”.

In the Hobart decision, on pg. 24 summarizing Nebraska Public Power “…Although the land in that case had been allotted in severalty to the individual Indians during the allotment era, the trust period for those allotments had never expired.  Recall that one of the effects of the IRA was that the existing periods of trust were extended indefinitely.  25 U.S.C.  462.  As a result, no fee-patent for the allotments had ever issued and the restrictions on alienation were never removed.”  On pg. 25 the Judge further recites “…Indian Country as that term is defined in Indian Country Act…(c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”

  • Thought this might be of interest because no fee-patent was ever issued for Lot # 3, which also includes a modern right-of-way.

In keeping with the strong policy of the federal government to protect Indian lands, once an Indian tribe (the Orchard Party-Marble Hill Oneida) makes out a prima facie case of prior possession or title to the property in dispute (Lots 2, 3 and Burial Ground), the burden of proof rests upon the non-Indian to demonstrate otherwise. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 668-69, 99 S.Ct. 2529, 2538-39 (1979)(citing 25 U.S.C. 194).  The burden of proof thus shouldered by the non-Indian questioning Indian title encompasses both the burden of producing evidence and the burden of persuasion.  That combined with the Orchard Party/Marble Hill Oneida’s paramount title of never dispossessed Lot 3 make a pretty solid case?

In light of the fact that Richard Bennett (Richard.Bennett@ogs.state.ny.us) seems to concur that Lot # 3 of the June 1842 treaty between the Orchard Party and NY State is the only land in Oneida County that the Oneida’s have paramount title to (and arguably the only land they have never been dispossessed of), does the November 2007 NYS passed ballot proposition for “land swap” transaction of NYS Wild & Forrest Lands precedent allow them to protect the state land adjoining Melvin’s Lot # 2 land (1869 NYState Law) and historically part of Lot # 4 of the June 1842 treaty (and patented, but for the last 30+ years designated as NY State Wild & Forrest)?  There are numerous acres within Lot # 3 that have been taken away from Melvin’s relatives over the year, and may well continue with the Thurston Farms, Inc. (aka Myron) selling the remnants of Lot # 3 and someone building yet another house on the road frontage in the very near future.

In THE UNITED STATES’ MEMORANDUM IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS FOR FAILURE TO JOIN INDISPENSABLE PARTIES filed July 16, 2001, Exhibit D.  The vast majority of NYState’s exhibits were Marble Hill-Orchard Party specific.  In this Affidavit by Deputy Commissioner, Bureau of Indian Affairs, M.Sharon Blackwell dated June 14, 2001 she states in # 4 that “The Secretary of Interior recognizes the Oneida Nation of New York as the Indian tribe that remained on the New York Oneida Reservation, as surveyed by Nathan Burchard, following the Treaty of May 23, 1842, between the State of New York and the First and Second Christian Parties of the Oneida Indians.”  This totally ignores, much like the Severalty Act of 1843 (which is Madison County and hence Boylan decision specific), that there were Orchard Party lands/treaties also on that date in May of 1842 and June of 1842 separate and distinct from said recognition by BIA.  As the 1838 Federal Buffalo Creek Treaty articulates in Article XIII, there were two separate and distinct factions of Oneida that the United States negotiated with:

  • The United States will pay the sum of four thousand dollars, to be paid to Baptista Powlis, and the chiefs of the First Christian Party residing at Oneida, and the sum of two thousand dollars shall be paid to William Day, and the chiefs of the Orchard Party residing there, for the expenses incurred and services rendered in securing the Green Bay country, and the settlement of a portion thereof, and they hereby agree to remove to their new homes in the Indian territory, as soon as they can make satisfactory arrangements with the Governor of the State of New York for the purchase of their lands at Oneida. It is interesting to note that the Tonowanda Band of Senecas Federal recognition, separate from the already existing Seneca Nation, was based on this same treaty.

Ms. Blackwell goes on to articulate in # 8 that “The Oneida of the Thames, a Canadian tribe, also claims to be a successor-in-interest to any interests protected, secured, or reserved to the historic Oneida Nation by Articles II and IV of the Treaty of Canandaigua.  7 Stat. 44.  The Onieda of the Thames is not a federally recognized tribe.  The absence of federal recognition, however, does not imply that it is not a successor-in-interest to any interests protected, secured, or reserved to the historic Oneida Nation by Articles II and IV of the Treaty of Canandaigua.  7 Stat. 44.”   That the DOI doesn’t even recognize their sovereign dominion there through the State of New York, Melvin is not “…rekindling embers of sovereignty that long ago grew cold. (Sherrill, pg.14)” because they never left!

The letter to Ray Halbritter by William Taylor and Neils Holch dated October 1, 1986 stating “…We want to advise you and the Marble Hill leadership that in our opinion their membership rolls will not be at risk if they decide to participate in this process…Even if Interior reaches a different conclusion, Marble Hill will never be required to provide a copy of its rolls.  These documents are solely the property of Marble Hill and at no time will Interior be permitted to violate the sovereign status…” smacks of lies and contradictions when coupled with the following.  Holch is co-inventor of the Oneida Nation’s gaming patents, and has taken an active role in their strategic decisions as the June 4, 1993 letter cited in Neil Murray’s filing notes.  Additionally, counsel of record for the Oneida Nation Taylor’s firm has filed claimed in Docket # 269, pg. 4 of 74-CV-187 “Marble Hill (or Orchard Hill) is simply a hill, and Oneidas who live or whose ancestors lived on or near the hill are sometimes referred to as Marble Hill (or Orchard Hill) Oneidas…” , directly conflicting with their previous positions.

In the Hobart decision on pg. 20 citing Oneida Nation v. County of Oneida, 414 U.S. 661, 676 (1974) “…Once patent issues, the incidents of ownership are…” guess continue to argue that no patent was ever issued for Lot # 3, and of course Lot # 2 was patented back to them in 1869, some 27 years after their last treaty in June of 1842.  Because they never left, does that make them immune to the passage of time barrier that the Supreme Court speaks of in Sherrill?  Additionally, because the OIN has not included the Marble Hill land in their recent Trust application does that mean they have ceded any power over it?

The Marble Hill people are currently classified within the Department of Interior as a sub-tribe of the Oneida Nation of New York.  Although we do not have that official documentation (but have documents from officals referencing this), that was confirmed by then Undersecretary of Interior David Hayes in a teleconference with Melvin Phillips in January 2000.  That was all changed when the Clinton Administration came to power in the early 1990’s.  The Orchard Party was Federally recognized in 1838 (Article XIII of the Buffalo Creek Treaty)…how does one lose that?  They are the only Oneidas who have never left their ancestral land, and have always governed their own affairs.

They, as the Interior Memo states, are the only Oneidas to have never left the land, and maintain an existence since time immemorial on Lot # 3 (June 1842 Treaty with Home Party) and Lot # 2 (NYState Law 1869 nullifying Patent) with a burial ground, meeting place, community structure, etc. to meet the guidelines of CFR, Title 25, Volume 1, Part 83.1 for an “…Indian tribe, also referred to herein as tribe, means any Indian or Alaska Native tribe, band, pueblo, village, or community within the continental United States…” and Part 83.7 as the Mandatory criteria for Federal acknowledgment.  Part 83.8 Previous Federal acknowledgment “…If a petitioner provides substantial evidence of unambiguous Federal acknowledgment, the petitioner will then only be required to demonstrate that it meets the requirements of Sec. 83.7 to the extent required by this section.”   This is why then Attorney General Spitzer’s office filed said motion to dismiss for failure to include indispensable parties, because there is more than enough empirical evidence that said band could one day file their own separate and distinct claim, etc

To the extent that Melvin and his family still hold aboriginal occupancy of their land, or some substantial equivalence to that theme, there were a couple of points of fact that rung true for me.   The “Oneida Provision” on a separate Oneida Reservation in Wisconsin seems to be somewhat of an apples to oranges issue, especially to the Phillip’s family claim to time immemorial – paramount title Orchard Party/Marble Hill lands in Oneida County (some of which is NYState land).

  • As the only Oneidas who have never left the land of our ancestors, our continual possession of land since “time immemorial” with identification/acknowledgement by Federal & NYState authorities, own church/meeting place, distinct government, burial ground, language, separately sovereign member rolls (acknowledged until recently by DOI & even Holch, Halbritter, Taylor), etc.
  • Numerous instances of distinct Orchard Party/Marble Hill recognition by DOI & BIA governing themselves with separate rolls beyond just treaty cloth allotment
  • Separate recognition within the Iroquois Confederacy
  • Not allowing OIN police on their land – only NYS Troopers
  • Having independent recognition by the EPA on environmental issues
  • NYState filing a “Motion to Dismiss for Failure to Include Indispensible Parties”, the vast majority of the exhibits being focused on the “Marble Hill Band”
  • Judge Kahn made it very clear in his decision to allow the Brothertown’s to intervene that Federal Recognition as a tribe is not a necessity, nor has it been for the Oneida of the Thames in their standing the claim.

The fundamental position of the Orchard Party/Marble Hill band of Oneida is that they are separate, Federally registered and protected Native Americans living on “sovereign” land.  They have never ceded title to their land (espeicially Lot#’s 2 & 3 from the June of 1842 Treaty with NYS), the land that these families are living on will come under the codes of the Oneida Indian Housing Authority currently being enforced on the 32-acre “trust land”…hence no party is representing their interests in the action.

Further evidence of this is that the OINNY did not add their land to their recent “land to trust” application, but if they are still a “sub-tribe” or “faction”, then under whose auspices can their well being be guaranteed both as a band or as individual Native American citizens wishing to have their rights & land protected?

If for some reason they have not, they intend to intervene (even as individual Native Americans) to protect their land and their interests in the action because several members have no standing or representation by Federal, State, or local governments.

  • Oneida Indian Nation letter dated June 5, 1995 which falsely accuses Melvin Phillips of numerous outrageous claims and stating clearly that he has lost his “voice”.  The letter closes by stating “…It is a serous offense against the Nation and its people to withhold information about efforts to erode Nation sovereignty, or to be part of a conspiracy to withhold such information.”
  • In Men’s Council Minutes dated April 14, 1997, “…Council stated when these people refuse, they are the ones creating their own misery…”

In Woody’s Amicus Curiae brief for Sherrill, on page 5 he writes “…This state set aside land was not ever territory of the United States according to the federal district court or Second Circuit.  See United States v. Boylan, 256 F. 468, 491 (N.D.N.Y. 1919), aff’d, 265 F. 165 (2nd Cir. 1920).”  …Continued on page 6 he writes “…as the Boylan courts and this Court has ruled, merely subjects the state reservation lands to the restraint against alienation under the Nonintercourse Act, 25 U.S.C. 177.  At most, the Oneida Indians have the possessory right of occupancy also known as Indian title.”

…Lastly, Woody adds on pages 13 & 14, “…The facts of this case plainly show that following the  decision in Worcester v. Georgia, the United States agreed to remove all of the New York Indians from the state of New York as evidenced by the Treaty of Buffalo Creek, ‘These proceedings, by which these tribes divested themselves of their title to lands in New York, indicate an intention on the part of both of the government and the Indians that they should take immediate possession of the tracts set apart for them in Kansas.’* New York Indians v. United States, 170 U.S. 1, 21 (1898). (emphasis added). The 1838 Treaty Buffalo Creek, executed by the Treaty of May 1842**, was the federal permission for the Oneida to convey all of their lands restricted under the Nonintercourse Act to New York.  As confirmed by the Second Circuit opinion in United States v. Boylan, in 1842, 1,100 acres remained in the original reservation set aside by New York in 1788.  The Treaty of 1842 which executed the broad provisions of the Treaty of Buffalo Creek, gave the permission of the United States required by the Nonintercourse Act as interpreted in Worcester to convey all the Oneida lands…”

*   In Article XIII, no payment is provided; rather, the removal was only to take place “…as soon as they can make satisfactory arrangements with the Governor of the State of New York for the purchase of their lands at Oneida.”  There clearly was no “total surrender of tribal claims in exchange for a fixed payment’’ in the Treaty of Buffalo Creek related to the Oneidas’ New York lands.  Yankton Sioux Tribe, 522 U.S. at 345, 118 S.Ct. at 799.  The treaty recognized two separate bands lands, consisting of Boylan’s First & Second Christian Parties in Madison County and the Orchard Party in Oneida County.

**  There were two New York treaties in May of 1842, one each between the First & Second Christian Parties and the Orchard Party.  In June of 1842, there was a final treaty with Orchard Party, and it should be noted that the Severality Act of 1843 ONLY mentions the Madison County lands and courts.

In Sherrill, the S.C. “…has recognized the impracticability of returning to Indian control land that generations earlier passed into numerous private hands.  See, e.g., Yankton Sioux Tribe v. United States, 272 U.S. 351, 357.  The unilateral reestablishment of present and future Indian sovereign control, even over land purchased at the market price, would have disruptive practical consequences similar to those that led to Yankton Sioux Court to initiate the impossibility doctrine:  Sherrill and the surrounding area are today overwhelmingly populated by non-Indians, and a checkerboard of state and tribal jurisdiction – created unilaterally at OIN’s behest – would “seriously burde(n) the administration of state and local governments” and would adversely affect landowners neighboring the tribal patches.  Hagen v. Utah, 510 U.S. 399, 421.  If OIN may unilaterally reassert sovereign control and remove these parcels from the local tax rolls, little would prevent it from initiating a new generation of litigation to free the parcels from local zoning or other regulatory controls that protect all landowners in the area.  See Felix, 145 U.S. at 335.  Recognizing these practical concerns, Congress has provided, in 25 U.S.C. 465, a mechanism for the acquisition of lands for tribal communities that takes account of the interests of others with stakes in the area’s governance and well being.”

The historical ignorance of the Courts continuing to cite L. Hauptman & L. McLester eds with Justice Ginsburg’s historical summary on pg. 6, “That acreage dwindled to 350 in 1890; ultimately, by 1920, only 32 acres continued to be held by the Oneidas. Ibid.” IS FACTUALLY INCORRECT.  She adds on pg. 9 “The Oneidas further sought to enlarge the action by demanding recovery of land they had not occupied since the 1795-1846 conveyances. Footnote #3 – In contrast, United States v. Boylan, 265 F. 165 (CA2 1920), involved land the Oneidas never left.  Boylan concerned the 1885 conveyances by individual Oneida Indians of a 32-acre tract of reservation land to non-Indians.  Despite the conveyances, a band of Oneidas continued to live on the land…The Second Circuit observed that the Oneidas were “actually in possession” of the 32 acres in question, id., at 167, and had occupied the land continuously for over a century, id., at 171…”

Lastly, she writes on pg. 18, “As between States, long acquiescence may have controlling effect on the exercise of dominion and sovereignty over territory.  Ohio v. Kentucky, 410 U.S. 641, 651 (1973)(‘The rule, long-settled and never doubted by this court, is that long acquiescence by one state in the possession of territory by another and in the exercise of sovereignty and dominion over it is conclusive of the latter’s title and rightful authority.’ (quoting Michigan v. Wisconsin, 270, U.S. 295, 308 (1926))); Massachusetts v. New York, 271 U.S. 65, 95 (1926) (‘Long acquiescence in the possession of territory and the exercise of dominion and sovereignty over it may have a controlling effect in the determination of a disputed boundary.’). The acquiescence doctrine does not depend on the original validity of a boundary line; rather, it attaches legal consequences to acquiescence in the observance of the boundary.  California v. Nevada, 447 U.S. 125, 131 (1980) (No relationship need exist ‘between the origins of a boundary and the legal consequences of acquiescence in that boundary…. Longstanding acquiescence by California and Nevada can give (the boundary lines) the force of law whether or not federal authorities had the power to draw them.’).”   THIS FURTHER STRENGTHENS THE STATE RESERVATION ARGUMENT???

Raymond Obomsawin, who was a kind-of co-CEO with Halbritter in the early 90’s before questioning some monetary issues and being character assassinated by Holch, Taylor, Barry & Ray was back recently to visit family and Melvin.  He is one of the parties to:

U.S. 2nd Circuit Court of Appeals. SHENANDOAH v U.S. DEPT. INTERIOR … THELMA BUSS; and MELVIN PHILLIPS, individually and as Representatives of the Oneida …

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=2nd&navby=case&no=976142v2&exact=1

He is currently in California and can be reached at Obomsawin@verizon.net (408) 507-9019, cell#  or (408) 353-4137, H#

Joanne Shenandoah contact # is 315-363-1655.

She and her husband Doug George have 2 addresses…

4036 State Rte. 5 – Seneca Ave., Oneida, NY 13421

PO Box 450, Oneida, NY 13421 (that is off an old business card, so not sure if still active)

shesings@borg.com + www.joanneshenandoah.com

Melvin thought the attached 2-page letter to the editor by Obomsawin from the mid-90’s is of value because, as you probably already well know, there was never a referendum by the Oneida people for the casino.  Obviously that is just the tip of the iceberg including the FRAUD of the ROLLS having 1000 members, but if anyone (including Patterson) is looking for proof beyond what is already in the courts that is a pretty big knock on their sand foundation of lies.

CHRONOLOGICAL ORDER OF ONEIDA TREATIES

 

Year       Other Party                                                                                  Approximate Acres

1.             1784       United States

2.             1785       New York

3.             1788       New York

4.             1789       United States

5.             1794       United States

6.             1794       United States

7.             1795       New York

8.             1798       New York

9.             1802       New York

10.          1805       Christian and Pagan Factions; filed with New York

11.          1807       New York

12.          1809       New York

13.          1809       New York

14.          1810       New York

15.          1811       New York

16.          1811       New York

17.          1815       New York – Last Treaty with Pagan Party ?

18.          1817       New York

19.          1824       New York

20.          1826       New York

21.          1827       New York w/ Orchard Party on February 2nd                               208.7  ACRES

22.          1829       New York

23.          1829       New York

24.          1830       New York w/ Orchard Party on April 3rd                                     1,000  ACRES

25.          1834       New York w/ Orchard Party on February 6th                               1,000  ACRES

26.          1837       New York w/ Orchard Party on February 4th                                     1  ACRE

27.          1838       United States – Buffalo Creek (Orchard Party included)

  • FEDERAL RECOGNITION, Article XIII

28.          1840       New York

29.          1841       New York

30.          1841       New-York w/ Orchard Party on March 13th                                 217.5  ACRES

31.         1842        New York  (w/ 1st & 2nd Christian Parties @ present 32 Acres on May 23rd)

32.            1842       New York w/ Orchard Party on May 23rd                                         76.2  ACRES

  • Less .3 A Cemetery)

33.            1842      *New York w/ Orchard Party on June 25th                              190.7  ACRES

  • Less 76 A Lot #3 & 28 A Lot #2)

34.            1846       New York w/ all Oneida parties

*Not in Whipple Report

The Marble Hill Oneidas seek perpetual protection of lands they now occupy.  Consistent with the Court’s Memorandum Decision and Order of September 25, 2000, the private landowners are not parties to this complaint in intervention, and the Marble Hill Oneidas do not seek monetary or other relief from private landowners on the subject lands.

The Parties

  1. Plaintiff-in-Intervention, the Marble Hill Oneidas, also referred to as the Oneida Nation of Orchard Hill and Orchard Hill Oneidas, are a traditional band or community of Oneida Indians, formally represented at the Grand Council of the Haudenosaunee, or Six Nations Iroquois Confederacy, who continue to reside on Oneida Lands passed from generation to generation through the Orchard Party of the historic Oneida Nation.

 

  1. The Marble Hill Oneidas respect the traditional form of government of the Haudenosaunee, maintain their own member rolls, aboriginal meeting place and burial ground separate and apart from Plaintiffs, the Oneida Indian Nation of New York, the Oneida Nation of Wisconsin, the Oneida of the Thames, and the New York Brothertown Indians.

 

  1. The Marble Hill Oneidas are direct descendants of the Orchard Party and the historic Oneida Nation which occupied portions of the Oneida Lands from time immemorial and, as such, are successors in interest to the 1794 Treaty of Canandaigua.

 

  1. The Marble Hill Oneidas are the only true tribal Oneidas that have remained resident on Oneida Lands in New York State uninterrupted since time immemorial.  They currently reside on historic Oneida Lands at Marble Hill in the Town of Vernon, Oneida County and elsewhere in New York State. [Confirm]

 

  1. The Marble Hill Oneidas are recognized Oneida Nation representatives on the Grand Council of the Iroquois Confederacy.

 

  1. The existing party Plaintiffs, the Oneida Indian Nation of New York, Oneida Nation of Wisconsin, Oneida of the Thames, and New York Brothertown Indian Nation are Indian communities or tribes which also claim an interest in a portion of the land which the Marble Hill Oneidas claim recognized Indian/legal title to.

 

  1. The United States of America (“U.S.”) has intervened in this action as a plaintiff to represent the interests of the historic Oneida Nation and/or any or all of its present-day successors-in-interest under the Nonitercourse Act, the Treaty of Canandaigua, and federal common law.

 

  1. Defendant, State of New York (“New York”, “New York State” or the “State”) purported to acquire the Oneida Lands from the Oneida Nation, pursuant to the transactions described hereafter.  New York State claimed title to or currently claims title to, and keeps the Marble Hill Oneidas out of possession of, the Oneida Lands.

 

  1. The 1794 Treaty of Canandaigua established a trust relationship between the United States and the Oneida Nation that has existed continuously to the present day.

 

  1. Congress never has ratified the purported conveyances of the subject lands from the Oneida Nation to the State, or conveyances from the State to third parties without the Oneida Nation’s consent, and these conveyances were conducted in the absence of federal authority.

 

  1. From time immemorial to the time of the American Revolutionary War, the Oneida Nation occupied some 6,000,000 acres of land in what now is New York State.

 

  1. In 1788, by treaty with the Oneida Nation (i.e., the Treaty of Fort Schuyler), the State of New York purchased most of the Oneida Nation’s aboriginal homeland.  The 250,000 acre Oneida Lands were reserved from this purchase.

 

  1. In the Treaty of Canandaigua, the United States, acting pursuant to the United States Constitution, acknowledged that the Oneida Nation had the right to occupy the subject lands and guaranteed the Oneida Nation’s free and undisturbed use of the land.  Specifically, Article II secured to the Oneida Nation “the lands reserved to the Oneida . . . Nation[] in [its] treat[y] with the State of New York,” the lands reserved to the Oneida Nation in the Treaty of Fort Schuyler of 1788.  The Treaty of Canandaigua stated that the subject lands would remain the Oneida Nation’s “until [it] choose[s] to sell the same to the people of the United States . . . .”  The Oneida Nation has never sold or ceded the subject lands to the people of the United States.  The Treaty of Canandaigua referred to the Oneida Nation’s lands as “their reservation . . . .”

 

  1. The Oneida Lands were still intact in 1790 when the Indian Trade and Intercourse Act (the “Nonintercourse Act”), 1 Stat. 137 (1790), was enacted.  The Nonintercourse Act expressly forbade and declared invalid any sale of land, or any title or claim thereto, by any Indian Nation or tribe without the approval and ratification of the United States.  The Nonintercourse Act has been continuously in force since 1790 and was re-enacted in the acts of March 1, 1793, 1 Stat. 329, 330; May 19, 1796, 1 Stat. 469, 472; March 3, 1799, 1 Stat. 743, 746; March 30, 1802, 2 Stat. 139, 143; and June 30, 1834, 4 Stat. 29; Rev. Stat. § 2116.  The current version of the Nonintercourse Act provides, in pertinent part:

No purchase, grant, lease, or other conveyance of land, or of any title or claim thereto, from any Indian nation or tribe of Indians, shall be of any validity in law or equity, unless the same be made by treaty or conveyance entered into pursuant to the Constitution.

 

25 U.S.C. § 177.

 

  1. The March 30, 1802 Indian Trade and Intercourse Act was amended by the Act of May 6, 1822 to specify the burden of proof in trials between Indians and white persons about property rights.  The Act of June 30, 1834 replaced this section with a substantially similar provision that was later codified at Rev. Stat. 2126 and currently is codified at 25 U.S.C. § 199.  Section 194 provides that “[i]n all trials about the right of property in which an Indian may be a party on one side, and a white person on the other, the burden of proof shall rest upon the white person, whenever the Indian shall make out a presumption of title in himself from the fact of previous possession or ownership.”

 

  1. From 1795 to 1846, representatives of New York State met with representatives of the Oneida Nation and executed 26 written instruments (the “26 Agreements”) whereby the Oneida Nation purportedly deeded to the State most of the lands reserved by the Treaty of Canandaigua.  The 26 Agreements purport to be signed by members of the Oneida Nation and by agents of New York State and are dated September 15, 1795; March 5, 1802; June 4, 1802; March 13, 1807; February 16, 1809; February 21, 1809; March 3, 1810; February 27, 1811; July 20, 1811; March 3, 1815; March 27, 1817; August 26, 1824; February 1, 1826; February 2, 1827; February 13, 1829; October 8, 1829; April 3, 1830; February 26, 1834; February 24, 1837; June 19, 1840; March 8, 1841; March 13, 1841; two dated May 23, 1842; June 25, 1842; and February 25, 1846.  Four other documents, which were purportedly executed by members of the Oneida Nation but not by New York State, purported to effect land transfers upon which some of the 26 Agreements are based, or purported to implement certain of the 26 Agreements.  The four documents respectively dated March 21, 1805, April 2, 1833, and April 1, 1841 (two documents).  Each of these Agreements violated the Nonintercourse Act, federal common law, and/or the Treaty of Canandaigua.

 

  1. Several of these illegal Agreements were entered specifically with the Pagan or Orchard Parties of the Oneida Nation, from who the Marble Hill Oneidas are directly descended.  These include the Agreements dated: February 21, 1809; February 2, 1827; April 3, 1830; February 26, 1834; February 24, 1837; March 13, 1841; May 23, 1842; and June 25, 1842 (the “Orchard Party Treaties”). The lands that were illegally acquired by New York State in the Orchard Party Treaties are the lands that the Marble Hill Oneidas now lay claim (the “Orchard Party Treaty Lands”).

 

  1. Except as described in this paragraph, none of the above-mentioned Agreements was approved by the United States Senate or the President of the United States.  There have been no plain and unambiguous actions by the United States to ratify any of the above-mentioned Agreements.  The June 4, 1802 Agreement, see para.  16(c) infra, (the “1802 Agreement”) was concluded in the presence of a United States commissioner and was approved by the United States Senate.  However, there is no evidence that the 1802 Agreement was ever signed by the President, and the 1802 Agreement is not included in either an 1822 compilation of treaties with Indians, see H.R.Doc.No. 74, 17th Cong., 1st Sess. 8 (1822), or the official compilation, produced at Congress’ direction, of “all Treaties with . . . Indian tribes,” J.Res. 10, 5 Stat. 799 (1845), published in 1846 as volume 7 of the United States Statutes at Large.  Thus, each of the above-mentioned Agreements was illegal and void ab initio under the Nonintercourse Act.

 

  1.                         In addition, New York purported to acquire certain portions of the Oneida Lands without any agreement between New York State and the Oneida Nation or its members.  New York State wrongfully took these lands from the Oneida Nation by purporting to transfer them to third parties through letters patent or similar instruments (the “Letters Patent Transfers”).  The Letters Patent Transfers never were agreed to by the Oneida Nation and never were ratified or approved by the United States.  The Letters Patent Transfers and the portions of land that they covered are described in (a) the “Act for the better support of the Oneida Indians,” Ch.86, Laws of New York, April 2, 1799, which required the purported grant to third parties of a one mile square tract of the Oneida Lands, and (b) the first finding of fact of the Report submitted on March 24, 1874 by Governor Dix to the New York State legislature, which described New York State’s illegal transfer of portions of the Oneida Lands.  The Letters Patent Transfers violated the federal common law, the Nonintercourse Act, and/or the Treaty of Canandaigua.

 

  1. After each of its purported acquisitions pursuant to the 26 Agreements and the Letters Patent Transfers, the State of New York wrongfully asserted control and/or possession of the relevant portions of the Oneida Lands.  It then purported to sell those portions of the Oneida Lands to third parties.  Upon information and belief, the State made substantial profits on its purported sales of the Oneida Lands.

 

  1. Defendants have occupied, and continue to occupy, portions of the subject lands. They have severed timber, minerals, crops and other valuable resources from portions of the subject lands, and they continue to do so.  They have inflicted damage, pollution and destruction upon portions of the subject lands, and they continue to do so.

 

  1. Neither the acquisitions by the State nor the Letters Patent Transfers comply with Nonintercourse Act or federal common law.  The United States never has approved or ratified the alienation of the Oneida Lands.

 

  1. Plaintiff has brought this action against defendants only because all other avenues of redress have been closed to them.

 

First Cause of Action

  1. The Marble Hill Oneidas repeat and reallege and incorporate by reference herein the allegations in paragraphs 1 through 32.

 

  1. In the 26 Agreements (including the Orchard Party Treaties) and the Letters Patent Transfers, New York interfered with the Oneida Nation’s enjoyment of its rights to the Oneida Lands under federal law and caused trespasses to the Oneida Lands that originated with the State’s illegal transactions.  New York State purported to sell or otherwise grant the Oneida Lands to third parties, including to Madison County and Oneida County, and direct and/or indirect assignors thereof.  By purporting to sell or otherwise grant the subject lands to third parties, New York State intended to, and did, authorize and caused those third parties, and all direct and indirect assignees of those third parties, permanently to trespass upon the Oneida Lands (the “Third Party Trespasses”).  As a result of New York’s unlawful actions, the Third Party Trespasses violated, and continue to violate, the Oneida Nation’s federal common law rights of Indian title to and possession of the Oneida Lands.

 

  1. By violating the Nonintercourse Act, by conducting the initial trespasses upon the Oneida Nation’s rights, and by authorizing, ratifying, and causing the Third Party Trespasses, New York State provided the means by which third parties derived title and possession of a portion of the Oneida Lands in derogation of the Oneida Nation’s federal rights to the Oneida Lands.  As the original and primary tortfeasor, New York State is liable for all damages to the Oneida Lands caused by the State wrongfully and unlawfully acquiring and/or transferring Oneida Lands from the Oneida Nation, irrespective of later transfers of portions of the subject lands.

 

  1. By authorizing, ratifying and causing the Third Party Trespasses, New York State jointly participated in and is liable for each and every such Third Party Trespass, as well as for its own illegal purchases and transfers of the subject lands.

 

  1. In addition, by violating the Nonintercourse Act, New York State provided the means by which third parties, including Madison and Oneida Counties, derived title and have continued to hold portions of the subject lands in derogation of the Oneida Nation’s rights to possession of the subject lands.  As the original tortfeasor, New York State is liable for all damage to the subject lands that ensued from the time each portion was wrongfully acquired or transferred from the Oneida Nation by the State to the present time, irrespective of later transfers of portions of the subject lands.

 

Second Cause of Action

  1. The Marble Hill Oneidas repeat and reallege and incorporate by reference herein the allegations in paragraph 1 through 37.

 

  1. Under the Nonintercourse Act, 25 U.S.C. § 177, the Oneida Nation has a continuing right to title to and possession of the subject lands, absent a transfer of the subject lands in compliance with that Act.

 

Third Cause of Action

  1. The Marble Hill Oneidas repeat and reallege and incorporate by reference herein the allegations in paragraphs 1 through 40.

 

  1. Under Article II of the Treaty of Canandaigua, the United States recognized the Oneida Nation’s permanent right to title to and possession of the subject lands, until such time as the Oneida Nation “choose[s] to sell the same to the people of the United States, who have the right to purchase.” The United States has never abrogated or modified the terms of the Treaty of Canandaigua and the Oneida Nation has never sold the subject lands to the people of the United States.

 

  1. Defendant New York State deliberately, wilfully and in bad faith violated the rights of the Oneida Nation under the Treaty of Canandaigua by entering into the 26 Agreements (including the Orchard Party Treaties) and the Letters Patent Transfers.  As a result of these Agreements and Transfers, the Oneida Nation was unlawfully dispossessed of the subject lands and that unlawful dispossession of the subject lands continues to the present day.

 

Fourth Cause of Action

  1. The Marble Hill Oneidas repeat and reallege and incorporate by reference herein the allegations in paragraphs 1 through 43.

 

  1. Under federal common law, the Oneida Nation, including the Marble Hill Oneidas, has Indian title to and the exclusive right to occupy the subject lands.  This right was confirmed to the Oneida Nation by the Treaty of Canandaigua.  This right can be terminated only by a plain and unambiguous act of the United States Congress.  There has been no such act by the United States.

 

  1. From the date on which New York State wrongfully acquired or transferred each portion of the subject lands from the Oneida Nation and continuing to the present time, defendants (or their direct or indirect assignors) have unlawfully possessed the subject lands and acted to exclude the Oneida Nation from its rightful possession of the subject lands.

 

  1. Defendants have severed attachments such as minerals, crops, timber and other valuable resources from the land without authority to do so, and acted to exclude the Oneida Nation’s rights in the resulting chattels by transferring or destroying the chattels.

 

Fifth Cause of Action

  1. The Marble Hill Oneidas repeat and reallege and incorporate by reference herein the allegations in paragraphs 1 through 47.

 

  1. Under the Nonintercourse Act, 25 U.S.C § 177, the Oneida Nation, including the Marble Hill Oneidas, has a continuing right to title to and possession of the subject lands, absent a transfer of the subject lands in compliance with that Act.

 

  1. Defendants, who claim title to and the right to possess portions of the subject lands derived from the illegal transactions described in paragraphs 27-30 above, have kept and continue to keep the Oneida Nation, including the Marble Hill Oneidas, out of possession of the subject lands in violation of the Nonintercourse Act.

 

Sixth Cause of Action

  1. Plaintiffs repeat and reallege and incorporate by reference herein the allegations in paragraphs 1 through 50.

 

  1. Under Article II of the Treaty of Canandaigua, the United States recognized the Oneida Nation’s permanent right to title to and possession of the subject lands, until such time as the Oneida Nation “choose[s] to sell the same to the people of the United States, who have the right to purchase.” The United States has never abrogated or modified the terms of the Treaty of Canandaigua and the Oneida Nation has never sold the subject lands to the people of the United States.

 

  1. Defendants have kept and continue to keep the Oneida Nation, including the Marble Hill Oneidas, out of possession of the subject lands in violation of the rights of the Oneida Nation under the Treaty of Canandaigua.

 

  1. New York State asserted control and assumed possession of the subject lands in violation of the Nonintercourse Act, 25 U.S.C. § 177, and continues to assert control and possession of some of the subject lands.  New York State purported to sell or otherwise grant portions of the subject lands to third parties.  By purporting to sell or otherwise grant the subject lands to third parties, New York State intended to, and did, authorized and cause Third Party Trespasses.  As a result of New York’s unlawful actions, the Third Party Trespasses violated, and continue to violate the Nonintercourse Act and the Oneida Nation’s federal rights to the subject lands.

 

PRAYER FOR RELIEF

1.         For declaratory judgment and other relief pursuant to 28 U.S.C. §§ 2201 and 2202, that the Marble Hill Oneidas have the sole and perpetual sovereign right to occupy the lands which they presently inhabit or claim possessory interest in.

 

2.         For declaratory judgment, pursuant to 28 U.S.C. § 2201, that the (Marble Hill Oneidas) Oneida Nation has the right to occupy the (Orchard Party Treaty Lands) lands described in this complaint that are currently occupied by the Defendants.

 

3.         For a judgment awarding monetary and possesory relief, including ejectment where appropriate, for those (Orchard Party Treaty Lands) Oneida Lands for which Defendants claim title or control;

 

4.         For a judgment awarding profits or fair rental value for the subject lands from the time when the State attempted to acquire each separate parcel of the (Orchard Party Lands)Oneida Lands in violation of the Trade and Intercourse Act, 25 U.S.C. 177, until the present, on the grounds that the State was the initial trespasser of the (Orchard Party Treaty Lands) Oneida Lands and all injury to the (Marble Hill Oneidas) Oneida Nation flowed from the State’s tortious actions, including the subsequent trespasses by private landowners.

 

5.         For a judgment awarding appropriate monetary relief for those (Orchard Party  Treaty Lands) Oneida Lands over which the State no longer retains title or control, on the grounds that the State was the initial trespasser of the (Orchard Party Treaty Lands) Oneida Lands and all injury to the (Marble Hill Oneidas) Oneida Nation flowed from the State’s tortious actions, including the subsequent trespasses by private landowners.

 

6.         For an award of attorneys fees and costs.

 

7.         For such other relief as this Court may deem just and proper.