the deed for his family's estate is a fifty nine dollars of the record document the phillips under oaken intergenerational title and possession the deed includes evidence in the form of ancient documents recognized under new york real property law this court should reverse for four reasons st as a threshold matter orientalist quite a title action is barred by the supreme court's city of muncy the rd case of the trilogy this court protected the quote settled expectations of its current landowners unquote phillips is a current landowner there is no reasonable basis on ancestors relied on the united states commitment in the buffalo creek treaty that they could continue to live on the family estate wherever if they chose to do so they have lived sacraments and held their title for generations without any claim by any ally to tribal identity ever having been made until this action was filed against rule of three years ago further the district court erroneous attributed to phillips an argument that the indian latches doctrine transferred title to him that is not correct phillips who broke the indian lattice doctrine as a shield against elian's quiet light most favorable to films the district court gave no weight to the plausible and compelling evidence in phillips recorded the factual allegations affirmative defenses or the historical and hundred and thirty eight dollars treaty for philips purpose is the special provisions for the united and article thirteen that provision provided affirmatively for the protection of the land tenure by this court or an overriding of its earlier decisions on this and in fact the supreme court's decision to charile to regarding  treaty has two facets to it it was with the oneida nation among other new york indian tribes its main purpose was to arrange for  indians who did not want to rule and it's important i think to remember the history of the treaty adoption the treaty ratification it was pretty much wrapped up and thirty eight but when the federal government understood that there were indians who were troubled about the meaning of the treaty they dispatched their treaty commissioner gillette back to the oneida people and explain to them what i had quoted or paraphrased a little earlier that they should not have any concern about being forced to remove what could remain where they were forever and that's what they did and that is youth well yes i guess i'm not quite sure where that individual ownership goes but it's yes this is an individual family estate and i think the boiler case is very instructive on that point because the boiler room case involved one of one kill lot a portion of which for families out of the two hundred and sixty four dollars or show population of all undo the foreclosure any vision that title went to not the united tribes there was no oneida tribe that was federally recognized at that time in the state of new york it went to the this is a real property actually it was not a sovereignty question it was not a claim on the half of other orchard party people what it was was a claim that mr phillips has a as a steward of his family's legacy and his determination to preserve the land of his family estate for all future descendants of those who had been were descended of the orchard party treated that they would be able to enjoy that approval as a delegation to the orchard party and christian parties by means of article thirteen to make very satisfactory arrangement was on the understanding that questions are a loon ating this is a very fact intensive inquiry that we are addressing and the the the threshold question st point of the of the bar to this we there i reread fact questions involved here and it was precisely the difficulty in assessing those kinds of factual issues that produced cheryl  a great deal of clarity yes but the great deal of clarity or honor goes to the question of disestablishment which is a very different question of whether the united states in making the eight hundred and thirty eight party the authority to make satisfactory arrangements with the governor of new york for the purchase of their land at a light and in this case a specific title that is being challenged here is the land that they didn't sell to new york and new york honored their decision to continue to occupy from new york perspective and the federal government did the same thing and i say that it is in the ranch to gillette commitment in the treaty discussions that that the senate directed gillette to clarify with the oneidas that they could stay on their land forever if they chose to do so and so that is that is the was that you obtained or you're the defendant's attainder individual interest in the land pursuant to the june th eight hundred and forty two treaty with new york but then i guess i understood you just now to be arguing that maybe your entitlement to the land is based in the cheryl equitable defense little factors because you have occupied the land and then also you said it's the one thousand eight hundred and thirty eight buffalo creek treaty which guarantees the right to remain on the land so you can have alternative arguments but i just want to know exactly where you think the right to the land originates very helpful so the eight hundred and thirty eight treaty was the authority that we believe fulfilled the obvious requirement in the not intercourse act for land to pass from tribal ownership into the family estate of thirteen of the buffalo creek treaty before so we said buffalo creek treaty did not affect the status of the oneida indian reservation and if in fact what it had done was approved the transfer of a portion of the reservation to individual ownership we could not reach that conclusion that would have been a limitation on the reservation right well  this particular issue with the article thirteen has always been used offensively by the tribe and understandably to to protect the integrity of the historic preservation but the provision in the affirmative provisions to benefit those people who were determined to stay there was a lot of people who were determined to stay is what we are asking this court to examine here and you know we really so that they can sell their lands to new york and then they're also going to come but what we had said was that thirty three dollars is really just a promise to make a future promise to sell the lands but otherwise did not change the character of the reservation or the oneida indian nations and huddled into it so it doesn't seem that what you're saying is inconsistent with that because if and was all it was only a promise to make a future promise and otherwise change the character of plant you're saying it actually change the character to largest states and maybe you're right for we've already considered this question and resolved it a different way of the treaty to prevent the oneida signatories to the eight hundred and thirty eight dollars treaty and to the state treaty that chose to stay behind and were promised the right to do that by the united states will be written any limitations placed on it and then what we also said was that it just indicates a promise that the two parties the st question party and the orchard party are going to still l to new york state on behalf of the nation and that in fact happens so we would not be writing that out of the treaty it happened but it just didn't happen with respect to this particular parcel was this is why if the district court erred in not assessing the facts associated with this matter and granting judgment on the pleadings there is no understanding in the district court's decision of historic oneida familial land tenure we try to set forth in our papers had we had a chance at trial to demonstrate this the logic of these individual family a state which were organic to oneida and just commissioner gillette sat down and spoke with the united people and said you can stay on the land where you reside forever these were and as justice ginsburg carefully pointed out these were the this wasn't the only night a tribe and it wasn't about retention of a night of sovereignty none of those issues are at play it's only that this this family and other families as is described in the property from overall tribal ownership to familial ownership by the orchard party or other faction and that they held it as a private party and not as tribal lands that itself w land by letting certain families live on certain parcels they can actually transfer ownership to the family unless they get congressional approval the the oneidas the united signed the eight no family and they are receiving a private ownership of private non tribal ownership of the land the orchard party and christian party are descriptors of the two groups one in madison county and one in the light  party and so the idea that no there is no there is no suggestion or contention that the orchard party became an independent sovereign or that the christian party became an independent sovereign when if the facts could be developed in this case it would be shown that these were all a population of two to three hundred night is who decided to remain behind their lands were held in the form of familial estates their individual interests were recognised and that practice of ownership continued in the case of philips to the present day know it should be applied to indian tenants as well as not indian tenants but you know cheryl itself is that is considered certain factors the longstanding distinctly non indian character of the land and its  not clear because there's no dispute that your client is a member of the tribe so it's not obvious that you know who and exactly when he was resigning but the other two factors about the long term to sticking on a character of the land urged as a citizen of the state of new york is mother did the same and his family before them they he has his membership in the tribe cannot be a basis for expropriating is his property citizenship cannot be reconciled with the claim of individual title to the land title to the land that's reserved from session does not change that's what it means to reserve reserve the land procession it's undisputed that the nineteen dollars acres was part of the oneida nation reservation recognized by the united states and the tree planted they grew up as quote the property of the on that a nation if the land was reserved from session there was no change to the title in the nation analytically the state did not obtain title if there was no session and if the state did not obtain title it had no title to convey and no land interests  would phillips does here whether he acknowledges it or not he would transform the reservation of the land into a session of the land individual and i the members that just makes no sense in the one thousand eight hundred and forty two treaty if you look a article one you'll see that the parties knew perfectly well how to make a session it contains the usual elaborate session and conveyance language that you see in these treaties there's no there's simply nothing in the part of the treaty that deals with the reserve land that would suggest that the reservation was actually in some unseen way a session to individual members the the fact that the title was unaffected given that the land was reserve concession is reflected also in the provisions of the treaty that provides were to be collectively held as it was before d the execution of the treaty the united nation had held its lands collectively since the beginning of collectively under the tree treaty what goes i think fails to recognize is that collectively is the opposite of individual ownership and the only claim he's making in this appeal is to individual ownership  fundamentally his claims into the eight hundred and forty two treaty rest on two impossible contradictions that ceded land that sorry the reserve land was actually ceded and the collectively held land is actually individually what i think comes through the discussion about a long history of occupation of the land and understanding among members who live there about who will live where is that the argument  collapses to the iranians proposition the tribal members of team title to tribal land by living on it for a long time of course tribal members live on tribal land that's what it's for if tribal  is a residence on tribal land ultimately unpaired tribal title a great deal of the tribal land in this country would disappear a black letter rule which i think is completely undisputed dollars collects all the authority to that effect spores are where there is no contrary authority and the coin indian law treatise also reflects the same black letter that black letter rules apply here it simply  court the court was called on to review and essentially identical eight hundred and forty two treaty concerning a different tract of all night a land the trees followed the exact same structure some land  was seeded some land was reserved some members were going to emigrate to wisconsin and some members were going to remain on the reserve land and hold it quote in common the court concluded that this treaty did not give individual land rights to the members who would remain on the reserve land and clearly treated the land as subject to the nation's type went back to the jurisdiction in the case of the united states to sue depending on the tribal title the united states was clearly enforcing its tree promises to the oneida nation in the treaty of canandaigua and the tribal title was fundamental to the exercise of its authority with respect to any interest the court held that the land had no individual ownership and it had to review that issue because one oneida member named isaac had mortgaged a part of the reserve land there had been a foreclosure the court ordered the sale of the entire tract of reserve land and chat and use the proceeds to satisfy  us mortgage and to cash out other purported on i the tribal member individual interests in the reserve land the court held in holding that there was no individual interest the court said quote no why or parcel was attempted to be a lot it or set off by the treaty to any individual indian as his or her separate share the court held that there had been no partition of the land under an eight hundred and forty three dollars statute that purport authorize partition and partition is a concept that applies to tribal land the way tribal land can go into individual ownership is through a partition but the fact that you're talking about partition put you in the realm of tribal land and the court further hell quote the members have not an undivided interest in tribal lands nor an enabling of all interest in any particular tract the court was specifically reviewing and boyle and whether this was tribal land or whether it was individual and and the holding of the case is that it was tribal that it was not individual and which means it was tribal land and if it were not tribal and mortgage mortgage would have orchard party on nytol land his motion papers or just dominated by allegations of tribal or orchard party ownership he does not he did not litigate a claim of individual ownership in the judgment on the pleadings where he said there is no claim today that the orchard party is a separate tribe from plan of a knight in the nation that means the orchard party could not have received any rights under the tree and could not have succeeded to the united tribal right of course the treaty contains a language indicate that would occur the concession that he made was part of the rationale for the district court's ruling that there were no orchard party on either rights on appeal is not arguing  or orchard party on either rights is now defending his position arguing that there were individual rights records that's inconsistent with everything he argued in the district court had a minute members who remain in new york sheryl has no play here because the really no sovereignty issues here there's clearly no challenge to a state session the state agreed and settlement of the nation have sovereignty over this land and the settlement states is a fact that  was retained by the nation in the one thousand eight hundred and forty two treaty there are no material facts litigate the district court because all the material facts offered concern individual ownership or family ownership of land or to decision is straightforward here because of five key points that are not disputed one just steadily recognize i'm not a nation land to it was never purchased by or ceded to the state three remain populated by nation members or court to review to resolve it was not in dispute and the statement that there were thirty two dollars acres doesn't come in some part of the opinion where there's a rationale or analysis it's simply a summary of some of the factual dismissing the counterclaim the court dismissed the counterclaim on alternative grounds one of them is that it was barred by the settlement which was approved by judge kahn because phillips objected to it and then didn't appeal and also if you look at the settlement that judge kahn approved it incorporated into an order of the court it requires in a dispute about a settlement to go back to judge judge kohn so you don't need to reach the issue because there are alternative grounds property you would have the bias by that ruling right yeah i think it's fair to say we would have by the court rules we might have appealed it right so then i mean i haven't does that just mean that the tribe has consented to the district court ruling on this issue consented to the district court ruling on that question on the question of ownership no phillips did not litigate a claim of individual ownership the only issue before the court no no no i understand whether you have title to application of sovereign immunity here unlike the other schedule doesn't affect the ability of the courts to determine the issue that builds wants to represent to litigate the united nations has presented the issue of its ownership that phillips wants to litigate and in defense of that and as a counterpoint to it is sort of collective tribal orchard party ownership the court resolve that issue the court resolve that issue as a consequence anything more than you've asked the court to do in deciding proper title to this land i think that's what you just said that it's just over is all your claim yes it is an academic question with the difference is this this process unfolded the way it did because the rules written require that the pleadings be closed before you follow a motion for judgment on the pleadings the nation did not sovereign has already asked the court to provide that there is a wave of cyber unity you don't contend that mr phillips counterclaim asks for anything more than you've asked for in fi litigate can be resolved they were resolved the issue we wanted to litigate was orchard party ownership that was resolved and now he's talking about individual ownership he's talking about that on appeal not in the it's a fundamental feature of this case and couldn't be more peculiar that he does not allege that the district court's ruling denying orchard party ownership was error but it was the only issue he put before the district court available no but we we do not maintain that he can't invoke the cheryl equitable considerations because he's a member of an indian tribe we say he can't do that because there's no challenge to the validity of a state session no challenge to a chain of state titles and in fact no sovereignty issue the state in the historic settlement with the united nations recognizes the united nations sovereignty over this land that just literates the past possibility of  and not available and also not nothing was offered that would suggest that any of them could possibly succeed they all failed as a matter of law and in fact in connection with the cheryl issue the district court held that mr phillips waived his affirmative defenses of latches and then possibility and he does not appeal that ruling ok so i have one of the question which is about the eight dollars treaty so you have said that the word collectively in the treaty does a lot of work but i mean it says that the lands are going to be enjoyed an occupied by the orchard party collectively in the same manner and with the same right title an interest status quo ante you know i think it's fundamental to our position not change the status quo ante but i don't think that phillips argues that the buffalo creek tree treaty created individual ownership is or human is right so i mean it does seem like you can read buffalo pre treating as saying the united thing we are leaving new york states and so you might read it to say the factions that are left you know just get with minister their land but we have rejected that interpretation haven't we of the matter president yes i think you've rejected the interpretation that affected land rights and i don't think actually that it can be read to suggested nation as a nation that nobody had leave and nobody had to sell nobody and the execution clause at the end of the treaty makes it clear that all of the parties of the united gathered in the council house and as the oneida tribe of party were themselves to the tories to be treated that make a difference know that all that means when the treaty reads in that area is that we the undersigned chiefs of the oneida tribe of new york and thirteen does refer to the st question party in the orchard party and workers to their land which suggests that there are way and particular to those factions that actually occur and i think that's a misreading respectfully of article thirteen and i think close look at earlier to the parties was just a reference to payment of some funds because of some work done by two parties with respect to immigration to wisconsin but the agreement to remove an i'll tell you the state and the counties purchase and dealt with in the ins living there but that did not affect the existing federally recognized tribal title to lands that were reserved from the session ok and the idea is advanced by the united nations that the states confer sovereignty on the united nations d whatever lands they d may have been identified without the united states approval so the idea of of a rd kind of sovereignty a federally approved sovereignty state sovereignty over totally under then the state approved tribal sovereignty is going to have a substantial effect subdivision or partially about land had to do with kind of see in common of the land that the united states to to protect it wished thirty two acres of sixty two acres of land of one lot a blank pool and as to that portion of land no arrangement had been made to allot that or divided into several to among the four families that held an uncommon united states did not secure that land to them so that is not considered felt under the sovereignty or jurisdiction of the of the united nations and by the same token if you look at the two thousand and thirty settlements there are at least three not indian poems on lot three requires at least actual or constructive possession and we believe the factual demonstrate if given an opportunity to do that that there is no constructive possession and there's clearly no actual possession because the back was their claim that they should have have possession but the shortest answer to this dispute is to apply your repeated decisions about ancient claims against new york landholders to this