UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

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August Term, 2001

(Argued: May 13, 2002 Decided: July 21, 2003)

Docket Nos. 01-7795, 01-7797 

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ONEIDA INDIAN NATION OF NEW YORK,

Plaintiff-Counter-Defendant-Appellee,

RAY HALBRITTER, KELLER GEORGE, CHUCK FOUGNIER, MARILYN JOHN, CLINT HILL, DALE

ROOD, DICK LYNCH, KEN PHILLIPS, BEULAH GREEN, RUTH BURR, BRIAN PATTERSON, and IVA

RODGERS,

Consolidated-Defendants-Appellees,

— v.—

CITY OF SHERRILL, NEW YORK,

Defendant-Counter-Claimant-Appellant,

MADISON COUNTY,

Amicus Curiae-Appellant,

ONEIDA COUNTY,

Amicus Curiae,

STATE OF NEW YORK,

Amicus Curiae.

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B e f o r e :

 VANGRAAFEILAND, MESKILL, and B. D. PARKER, JR.,

Circuit Judges.
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The City of Sherrill and Madison County appeal from a judgment of the United States

District Court for the Northern District of New York (David N. Hurd, Judge) establishing that

property owned by the Oneida Indian Nation of New York in Sherrill and Madison is within

Indian country and, consequently, is exempt from local taxes. We affirm with respect to Sherrill

and vacate with respect to Madison.

Judge Van Graafeiland dissents in part in a separate opinion. 

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IRA S. SACKS, Fried, Frank Harris, Shriver & Jacobsen New York, NY, for

Defendant-Counter-Claimant-Appellant.

MICHAEL R. SMITH, Zuckerman Spaeder, LLP, Washington, DC (William

W. Taylor, III, David A. Reiser, of counsel), for Plaintiff-CounterDefendant-Appellee and Consolidated-Defendants-Appellees.

G. ROBERT WITMER, JR., Nixon Peabody LLP, Rochester, NY (David M.

Shraver, of counsel), for Amici Curiae-Appellants Madison County

and Oneida County.

ANDREW D. BING, Assistant Solicitor General, Albany, NY (Caitlin J.

Halligan, Daniel Smirlock, Peter H. Schiff, of counsel, for Eliot

Spitzer, Attorney General of the State of New York), for Amicus

Curiae State of New York.

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B. D. PARKER, JR., Circuit Judge:

This case, consisting of four actions, addresses whether properties reacquired by the

Oneida Indian Nation of New York (“OIN” or “the Oneidas”) are subject to taxation by the City
1Despite our use of the “OIN” acronym, the Oneida Indian Nation of New York should

not be confused with the original Oneida Indian Nation, which is not a federally recognized tribe

and is not a party to these consolidated cases. As discussed infra, the original Oneida Indian

Nation became divided into three distinct bands, the New York Oneidas, the Wisconsin Oneidas,

and the Canadian Oneidas, by the middle of the nineteenth century.

2Located in Oneida County, Sherrill is the State’s smallest city, occupying one-and-onehalf square miles with a population of approximately 3000 and an annual budget of $2.4 million.

of Sherrill, New York and Madison County, New York. The OIN is a federally recognized

Indian tribe, governed by a Nation Representative and a Tribal Council.1 The Oneidas lived on

what became central New York State long before the founding of the United States. In the late

eighteenth century most of the Oneidas’ ancestral land was formally set aside by Congress as

reservation land. During the nineteenth century much of it was sold to non-members of the tribe. 

But starting in the 1990s members of the tribe reacquired parcels in open-market transactions,

and in 1997 and 1998 the purchases included several businesses and properties in Sherrill.2

These properties include two upon which the Oneidas operate a gasoline station, a convenience

store, and a textile manufacturing and distribution facility (the “Sherrill Properties” or the

“properties”). Contending that these properties are within their reservation and are,

consequently, not subject to taxation, the Oneidas refused to pay the property taxes or to collect

sales taxes on merchandise sold at the businesses. 

Following this refusal, Sherrill purchased three of the properties at tax sales and, two

years later, recorded deeds. Sherrill also started formal eviction proceedings. In response, the

Oneidas sued Sherrill in the United States District Court for the Northern District of New York

(the “Lead case”), contending that the land, as part of their historic reservation recognized

principally by the 1794 Treaty of Canandaigua, is exempt from state and municipal taxation. The
3

It appears that the Sherrill Properties were transferred to an individual OIN member in

1805 and by that member to a non-Indian in 1807, and were thereafter owned by several private

parties until their reacquisition. 

suit sought declaratory and injunctive relief prohibiting the evictions and the imposition of

property taxes. Although the Sherrill Properties were purchased from non-Oneidas, the Oneidas

claim that their purchases reestablished the properties as reservation land because the federal

government – which alone has the power to do so – has never changed the reservation status of

the land.3 Sherrill counterclaimed, seeking declaratory and injunctive relief and damages,

asserting that, for a variety of reasons, the land had lost its reservation status and that the OIN has

been unjustly enriched by municipal benefits received, but not paid for, after reacquisition.

Sherrill also petitioned the New York State Supreme Court, Oneida County, to order the

eviction of the OIN from the properties (the “Eviction case”). The OIN, citing federal

preemption, removed to federal court, contending that sovereign immunity barred Sherrill’s

claims. In response to this defense, Sherrill filed an action against the individual members of the

Tribal Council (the “Members case”). Sherrill again sought eviction and also sought injunctive

relief, forbidding council members from purchasing additional properties in the city.

These three cases were related to an additional action (the “Related case”), brought by the

OIN against Madison County, concerning thirteen parcels of land also purchased by the OIN in

the 1990s. As in the Lead case, the Oneidas sought declaratory relief that these properties are not

subject to taxation, contending that, notwithstanding intervening non-Indian possession, these

properties have remained reservation land. 

Procedural strife followed. In the Lead case, Sherrill moved for summary judgment, for
injunctive relief, and to amend its answer to add various affirmative defenses. The OIN opposed

the motions and cross-moved for summary judgment in the Lead and Eviction cases, asserting

principally that the parcels in question were non-taxable because they were located on reservation

land in Indian country. See 18 U.S.C. § 1151. In the Members case, the OIN officers moved to

stay or, in the alternative, to dismiss principally on grounds of sovereign immunity and the failure

to name the OIN as a party. Madison moved to dismiss the Related case for failure to join two

allegedly indispensable parties: the Wisconsin and Thames Oneidas. In November 2000, the

State of New York, Madison and Oneida Counties, and a public company, Oneida Ltd., filed

briefs as amici curiae in the Lead case in support of Sherrill’s motion for summary judgment and

in opposition to the OIN’s cross-motion.

After the dust settled, the District Court issued a well-reasoned opinion resolving these

various motions. Oneida v. City of Sherrill, 145 F. Supp. 2d 226 (N.D.N.Y. 2001) (“Oneida

IV”). It considered a number of issues but devoted a good deal of attention to what the parties

considered – and what we agree – to be the basic question posed: whether the properties are in

Indian country. Oneida IV, 145 F. Supp. 2d at 241. The court concluded that, for a number of

reasons, they are. The properties are part of the Oneidas’ aboriginal lands and federally

recognized reservation. The reservation’s status was guaranteed by treaty obligations –

principally in the 1794 Treaty of Canandaigua – and Sherrill did not carry its burden of

demonstrating congressional action disestablishing the reservation. Accordingly, the District

Court concluded that, as they are in Indian country, neither the Sherrill nor Madison Properties

are taxable by Sherrill and Madison County, and granted the OIN judgment on its claims in the
4Sherrill appeals from the three separate judgments entered by the District Court on June

4, 2001, in the Lead, Eviction and Members Case, considered under docket number 01-7795. 

Madison appeals from the District Court’s entry of judgment in the Related case, as well as the

court’s order denying its motion to dismiss, considered under docket number 01-7797. 

On appeal, Madison, Oneida County, and the State of New York have appeared as amici

curiae on the Lead, Eviction, and Members cases. They will be referred to collectively as the

“amici.”

Lead case. Id. at 254-259. 

Determining that the OIN was entitled to sovereign immunity, the court also granted

judgment on Sherrill’s counterclaims in the Lead case and denied Sherrill leave to amend its

complaint. Id. at 258-59. The court granted the OIN judgment in the Eviction case as well,

concluding that it was entitled to sovereign immunity. It also granted the council members’

motion to dismiss in the Members case, concluding that they too were entitled to sovereign

immunity and that, in any event, Sherrill had failed to join the OIN, which the court found to be

an indispensable party. Finally, the court sua sponte granted the OIN judgment on the pleadings

in the Related case, concluding that its findings with respect to the Sherrill Properties applied

also to those located in Madison. Separately, the court denied Madison County’s motion to

dismiss that case. Oneida Indian Nation of N.Y. v. Madison County, 145 F. Supp. 2d 268, 270-

71 (N.D.N.Y. 2001). Sherrill and Madison appealed.4 We agree with the District Court’s

principal conclusion that the OIN’s Sherrill Properties are not taxable, and therefore affirm the

judgment in the Lead, Eviction, and Members cases. Because we find, however, that the court’s

sua sponte grant of judgment on the pleadings in the Related case was procedurally improper, we

vacate this judgment and remand for further proceedings.
 BACKGROUND

I. Treaties Governing Rights to the OIN’s Land

 Since the land in question has been the subject of federal litigation off and on for more

that one hundred and fifty years, before looking at the controlling legal issues, we briefly review

how we reached this point in time. As previously noted, the parties contest whether land first

occupied by the Oneidas in upstate New York before the founding of this country is, upon

reacquisition by the Oneidas, subject to taxation by New York State and its municipalities. 

The Oneidas are the direct descendants of members of the original Oneida Indian Nation,

one of the six nations of the Iroquois Confederacy (the “Six Nations”), which were the most

powerful Indian tribes in the northeastern United States at the time of the American Revolution. 

County of Oneida, N.Y. v. Oneida Indian Nation of N.Y., 470 U.S. 226, 230 (1985) (“Oneida II”) 

(citing B. Graymont, The Iroquois in the American Revolution (1972)). The Six Nations are the

Cayugas, Mohawks, Oneidas, Onondagas, Senecas, and Tuscaroras. New York Indians, 170 U.S.

1, 36 (1898) (“New York Indians II”). From time immemorial through the Revolutionary period,

the Oneidas inhabited what is now central New York State. Their aboriginal lands covered

approximately six million acres, from the Pennsylvania border to the St. Lawrence River, and

from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. Oneida

II, 470 U.S. at 230.

A. Nonintercourse Act and Canandaigua Treaty

With the adoption of the Constitution, Indian relations came exclusively under federal
authority. See Oneida II, 470 U.S. at 234; Oneida Indian Nation of N.Y. v. New York,194 F.

Supp. 2d 104, 146 (N.D.N.Y. 2002) (Oneida IIIb) (“[A]ny rights [in Indian land] possessed by

the State prior to ratification of the Constitution were ceded by the State to the federal

government by the State’s ratification of the Constitution.”). Article I, section 8, clause 3 of the

Constitution, the Indian Commerce Clause, established Congress’s power “[t]o regulate

Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S.

Const., art. I, § 8, cl. 3. 

In 1790, Congress passed the first Indian Trade and Intercourse Act (the “Nonintercourse

Act”), 1 Stat. 137, sharply limiting the alienability of Indian land. In essence, the Nonintercourse

Act required federal consent for all land purchases from Indian nations. The 1793 amendments

to the Act, which contain the language currently in effect, provided: 

No purchase, grant, lease, or other conveyance of lands, 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 convention entered into pursuant

to the Constitution.

Act of March 1, 1793, 1 Stat. 329 (1793) (codified at 25 U.S.C. § 177 (2000)); see generally

Mohegan Tribe v. Connecticut, 638 F.2d 612, 616-18 (2d Cir. 1980) (discussing history of and

amendments to Nonintercourse Act).

The Supreme Court has consistently applied the principle, embodied in the

Nonintercourse Act, that federal consent is required for purchases of Indian land or for the

termination of aboriginal title. See, e.g., Oneida II, 470 U.S. at 232; United States v. Santa Fe

Pacific R. Co., 314 U.S. 339, 345 (1941) (“Unquestionably it has been the policy of the Federal

Government from the beginning to respect the Indian right of occupancy, which could only be
5Prior to 1794, the Oneidas ceded substantial portions of their aboriginal lands to New

York State. In 1785, by the Treaty of Fort Herkimer, the Oneidas ceded approximately 300,000

acres to New York State. Oneida Indian Nation of N.Y. v. New York, 860 F.2d 1145, 1148 (2d

Cir. 1988). In 1788, by the Treaty of Fort Schuyler, the Oneidas ceded approximately 5 million

more acres to the State and retained 300,000 acres as a reservation. Oneida II, 470 U.S. at 231,

Oneida IIIb, 194 F. Supp. 2d at 112. The Sherrill Properties and, it appears, the Madison

properties, were part of the territory reserved to the Oneidas. Oneida IV, 145 F. Supp. 2d at 234.

interfered with or determined by the United States.”) (citing, among other authorities, Johnson v.

McIntosh, 8 Wheat. 543 (1823) (refusing to recognize land titles originating in grants by Indians

to private parties in 1773 and 1775 because they were contrary to principle that Indian title could

only be extinguished by or with consent of federal government)). The absence of federal consent

is the Oneidas’ central argument in this litigation. 

Another pivotal enactment was the 1794 Treaty of Canandaigua, 7 Stat. 44 (Nov. 11,

1794). This treaty recognized that the Oneida reservation covered approximately 300,000 acres,5

and the federal government undertook that it “[would] never claim [this land], nor disturb [the

Oneidas] . . . in the free use and enjoyment thereof: but the said reservations shall remain theirs,

until they choose to sell the same to the people of the United States, who have the right to

purchase.” 7 Stat. 45. On the strength of this treaty, which remains in force, the Oneidas

contend that the land in Madison and Sherrill is reservation land in Indian country and, upon

reacquisition, must be treated as such. 

B. Indian Removal and the Treaty of Buffalo Creek

Notwithstanding the Nonintercourse Act’s prohibition on purchases of Indian land, and
6

 Colonel Timothy Pickering, the United States Secretary of War following the Treaty of

Canandaigua, upon the recommendation of the United States Attorney General, ordered the

Superintendent of the Affairs of the Six Nations not to aid New York in any purchases of Indian

land and forwarded to New York Governor George Clinton a copy of the Attorney General’s

opinion that title to the Six Nations’ land could be extinguished only by a treaty entered into

under authority of the United States. See Seneca Nation of Indians v. New York, 206 F. Supp.

2d 448, 494 (W.D.N.Y. 2002).

despite federal government advice to the contrary,6 New York State repeatedly purchased Indian

land within its borders. In a 1795 transaction, for instance, the OIN conveyed virtually all of its

remaining land to New York in exchange for annual cash payments. Oneida II, 470 U.S. at 232. 

Overall, more than thirty treaties of purchase were made with various segments of the tribe

during the late eighteenth and early nineteenth centuries. See Jack Campisi, Oneida, in 15

Handbook of North American Indians 484 (Bruce G. Trigger ed., 1978) (hereinafter “Campisi”). 

The Madison properties purportedly were conveyed to the State in this manner. As Oneida lands

were transferred to the State, they were surveyed and laid out in townships, which eventually

were subdivided and sold to private parties. Individual Oneidas also sold land to private parties. 

The Sherrill Properties fall into this group of conveyances. The Oneidas contend that to the

extent any of the purchases lacked congressional approval, they violated the Nonintercourse Act

and the Treaty of Canandaigua.

Early in the nineteenth century, federal policy concerning eastern Indians changed from

maintenance of their right of occupancy in ancestral lands to their removal west of the

Mississippi River. This change was spurred by the states’ desire to control the remaining unceded Indian land within their boundaries, by the incursion of settlers onto treaty-protected Indian

land, and by the perceived inability of the Indians to assimilate. See David H. Getches et al.,
7

 Ogden Land Company, which held preemption rights to Indian lands in New York State,

wished to free the remaining reservation land in the State from Indian title. Eleazar Williams, an

Episcopal lay reader and catechist who had moved to the Oneida reservation, persuaded a large

group of Oneidas and members of other tribes to emigrate and assisted in making the

arrangements for their removal with the Wisconsin tribes. Francis Paul Prucha, American Indian

Treaties 96, 202 (1997) (hereinafter “Prucha”); Campisi at 485. Williams’ motive, however,

differed from that of the State and Ogden; he sought the “establishment of an Iroquois

ecclesiastical empire with himself as its leader . . . resettled in the vastness of Wisconsin.” 

Campisi at 485.

8

 The purchase was made on behalf of the Six Nations (excluding the Mohawks, who had

withdrawn to Canada) and the St. Regis, Stockbridge, and Munsee tribes. The terms of this

purchase and another made in 1822 were memorialized in a treaty between the federal

government and the Menominee in 1831, to which the New York Indians gave their assent in

1832. See New York Indians II, 170 U.S. at 14; Treaty of Buffalo Creek, 7 Stat. 550, Preamble

(1838) (proclaimed April 4, 1840).

Cases and Materials on Federal Indian Law 93-95 (4th ed. 1994) (hereinafter “Getches”); Felix

S. Cohen, Handbook of Federal Indian Law 53-54 (1942) (hereinafter “Cohen”). Removal was

deemed necessary to “mak[e] available for white settlement a vast area and solving the problem

of conflict of authority caused by a presence of Indian nations within state boundaries.” Cohen at

53. 

Between 1810 and 1816, the Six Nations, facing pressure from New York State to

remove,7 purchased approximately 500,000 acres in Wisconsin from the Menominee and

Winnebago tribes.8 New York Indians II, 170 U.S. at 11-14. Several hundred Oneidas moved

there during the 1820s, with only a small number remaining in New York. Id. at 14, 36; United

States v. Boylan, 265 F. 165, 167 (2d Cir. 1920); Campisi at 485. Those who stayed “held a

single and undivided tract reserved out of the original Oneida reservation.” Boylan, 265 F. at

167.

In 1830, Congress passed the Indian Removal Act, which reflected this shift in federal
9

 The impetus for the Removal Act was a conflict between Georgia and its Cherokee

Indian inhabitants. Georgia, desiring complete jurisdiction over the lands within its territory, had

signed a compact with the federal government in 1802 by which the state relinquished its western

lands (which ultimately became the states of Mississippi and Alabama) in return for a promise by

the United States to extinguish Cherokee Indian title to Georgia lands “as early as the same can

be peaceably obtained on reasonable terms.” Prucha at 156. When the federal government failed

to live up to its part of the bargain, Georgia itself denied the Indians’ title and jurisdiction over

the lands in question and considered the treaties it had signed with the Indians – which

recognized Indian title and political autonomy – invalid. Id. at 157. These actions led to

significant objections by the northern states. After heated debates in Congress concerning Indian

rights, in particular the relative sanctity of their treaty-making power, the Indian Removal Act

was passed, and the Cherokees’ removal from Georgia was complete by 1838. Id. at 161-65.

policy and allowed Indians to exchange their eastern lands for lands set aside in the west.9 See

Act of May 28, 1830, 4 Stat. 411. The Act provided:

That it shall and may be lawful for the President of the United States to cause so

much of any territory belonging to the United States, west of the river Mississippi,

not included in any state or organized territory, and to which the Indian title has

been extinguished, as he may judge necessary, to be divided into a suitable

number of districts, for the reception of such tribes or nations of Indians as may

choose to exchange the lands where they now reside, and remove there . . . .

Ch. 148, 4 Stat. at 411-12

The 1838 Treaty of Buffalo Creek, 7 Stat. 550 (Jan. 15, 1838), was enacted pursuant to 

this removal policy. Prucha at 202. Stimulated by the desire of Buffalo city leaders to “make

room for the expansion of the city onto adjacent Seneca reservation lands,” New York began a

“full-scale drive . . . to eliminate the Indians from the state and move them to lands west of

Missouri.” Id. Under the Treaty, the Six Nations and the St. Regis Indians agreed to remove

from their New York and Wisconsin reservation lands to approximately 1.8 million acres in

Kansas, which had been set aside as Indian territory. The Treaty provided that the new

reservation lands were to provide “a permanent home for all the New York Indians, now residing
in the State of New York, or in Wisconsin, or elsewhere in the United States, who have no

permanent homes.” Buffalo Creek Treaty, art. 2. The Treaty authorized a payment of $400,000

to cover the costs of removal. As discussed below, Sherrill and Madison claim that it effected

the disestablishment of the Oneidas’ reservation and the formal relinquishment, with

congressional approval, of their possessory claim to the lands at issue.

The first eight articles and Article 15 of the Treaty set forth this basic bargain. Id., arts. 1-

8, 15. Articles 9 through 14 reflect specific agreements between the government and individual

tribes. Id., arts. 9-14. In Article 10, for example, the Senecas agreed to remove within five years

to land in eastern Kansas, and the government approved the sale of their remaining New York

land to two individuals, Thomas L. Ogden of the Ogden Land Company and Joseph Fellows. Id.,

art. 10; see New York Indians, 72 U.S. (5 Wall.) 761, 767 (1867) (“New York Indians I”). The

Tuscaroras made a similar removal commitment in Article 14, which also confirmed the sale of

their New York land to Ogden and Fellows. Buffalo Creek Treaty, art. 14.

At the time of the Treaty, only approximately 5000 of the original 300,000 acres of

Oneida reservation land remained in their hands, the rest having been sold to New York or to

private parties. Around 620 Oneidas still resided in New York. Buffalo Creek Treaty, Sch. A,

Add. 29. Article 13 of the Treaty provided for the removal of these Oneidas, but only upon

certain conditions:

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 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 Government of the State of New York

for the purchase of their lands at Oneida.
Buffalo Creek Treaty, art. 13 (emphasis added).

The wholesale removal of the New York Indians to Kansas contemplated by the Treaty

never occurred. See New York Indians II, 170 U.S. at 26-27 (noting that provision was only

made for the “actual removal of more than about 260 individuals of the claimant tribes,” and that

none of the thirty two Indians who actually received Kansas allotments ever settled permanently

there). For their part, the Oneidas residing in New York and Wisconsin refused to relocate to

Kansas. See New York Indians II, 170 U.S. at 9-10. Hundreds of New York Oneidas moved

instead to Wisconsin and to Ontario, Canada. By 1848 only approximately 200 Oneidas resided

in New York. Campisi at 485. Thus, by the middle of the nineteenth century, three distinct

bands of the tribe existed: the New York Oneidas, the Wisconsin Oneidas, and the Canadian

(“Thames”) Oneidas. Oneida IV, 145 F. Supp. 2d at 235.

The record does not reflect any large block sales of reservation land to New York State by

the Oneidas after 1842, when 1100 acres were conveyed. But as the exodus of members

continued over the next half-century, reservation acreage inhabited by Oneidas shrank

significantly, by some accounts to less than 100 acres. See Boylan, 265 F. at 165 (discussing

action brought by federal government, on behalf of Oneidas, seeking ejectment of defendants

from thirty-two acres of land, forming part of original Oneida reservation); Annual Report,

Commissioner of Indian Affairs, 1890, 1893 (stating that the Oneida reservation contained only

approximately 350 acres in 1890, and approximately 100 acres in 1893 when the tribe’s New

York branch itself numbered less than 200).

II. Land Claims Involving the OIN
Litigation involving the OIN and other New York Indians followed the Treaty of Buffalo

Creek. Ogden and Fellows, who held fee title to Seneca lands under the Treaty, sued New York

to void pre-removal tax assessments after the parcels had been sold to third parties because of the

Senecas’ nonpayment of state taxes. New York Indians I, 72 U.S. at 764-65. In 1867, the

Supreme Court held that the taxation of the parcels was “premature and illegal” because it

interfered with the Indians’ possessory rights guaranteed by the federal government. “Until the

Indians have sold their lands, and removed from them in pursuance of the treaty stipulations, they

are to be regarded as still in their ancient possession, and are in under their original rights, and

entitled to the undisturbed enjoyment of them.” Id. at 770.

As noted, most of the Six Nations Indians did not remove to Kansas. The federal

government disposed of the Wisconsin lands conveyed to it by the Indians, appropriated the

unoccupied Kansas land and placed it in the public domain for sale to settlers. New York Indians

II, 170 U.S. at 4, 24. The New York Indians sued, claiming entitlement to the Kansas lands

ceded to them under the Treaty, and seeking the value of the land sold and the money the

government had agreed to pay on their removal. Id. at 1-2. 

Eventually the case reached the Supreme Court, which held in l898 that the Buffalo Creek

Treaty effected a present grant of the Kansas lands to the Indians and that forfeiture of these

lands could occur only through legislative action. Simply opening the land to settlement, as the

federal government had done, was insufficient. Accordingly, the Court concluded that the New

York Indians, including the Oneidas, were entitled to money damages. Id. at 25-36.

Litigation involving the Oneidas’ proprietary rights in their New York reservation lands

began in the late nineteenth century. In 1885, some Oneidas conveyed reservation parcels to
non-Indians but continued to live on the land. After the Indian occupants failed to meet

mortgage obligations, the owner brought a foreclosure action and, following partition, the Indians

were ejected. Reaffirming the principles embodied in the Nonintercourse Act, we held the

ejectment improper because the original conveyance lacked the approval of the federal

government: the “tribe could not sell, nor the individual members, for they have not an undivided

interest in the tribal lands, nor alienable interest in any particular tract.” Boylan, 265 F. at 174. 

We emphasized that “[a] transfer of the allotment to [non-Indians] is not simply a violation of the

proprietary rights of the Indians; it violates the government rights of the United States.” Id. at

173.

Many decades later, in 1970, the Oneidas sued Oneida and Madison Counties as a

consequence of their occupation of an approximately 900-acre tract ceded by the OIN to New

York in 1795. The Oneidas claimed that the occupation violated the Nonintercourse Act and

sought to recover the land’s fair rental value for a two-year period in the 1960s. The case

reached the Supreme Court, which again affirmed the Oneidas’ aboriginal possessory rights,

concluding that the Noninterourse Act and certain treaty obligations prohibited termination of

these rights without federal approval. See Oneida Indian Nation of N.Y. v. County of Oneida,

414 U.S. 671, 675-78 (“Oneida I”) (stating that the Oneidas had asserted “the not insubstantial

claim that federal law now protects, and has continuously protected from the time of the

formation of the United States, possessory rights to tribal lands, wholly apart from the

application of state law principles which normally and separately protect a valid right of

possession”). 

 On remand, the district court found the counties liable to the Oneidas, and we affirmed. 
10 The damages phase of this case has just recently concluded, more than thirty years after

the case commenced, with the Oneidas receiving approximately $35,000 plus prejudgment

interest from Oneida and Madison Counties. See Oneida Indian Nation of N.Y. v. County of

Oneida, N.Y., 217 F. Supp. 2d 292 (N.D.N.Y. 2002).

Oneida Indian Nation of N.Y. v. County of Oneida, 719 F.2d 525 (2d Cir. 1983). Hearing the

case for a second time, the Supreme Court again affirmed, holding that the Oneidas could

maintain a federal common law action based on the counties’ allegedly illegal occupation of their

lands and that the Nonintercourse Act did not preempt the tribe’s claims. Oneida II, 470 U.S. at

236-40. The watershed decisions in Oneida I and Oneida II established the OIN’s right to

challenge the deprivation of its historic title by the sales to New York in the late eighteenth and

early nineteenth centuries.10

In 1974, the OIN and the Wisconsin Oneidas brought a similar suit against Oneida and

Madison Counties, but of considerably greater scope. The Oneidas alleged that between 1795

and 1846, pursuant to some thirty agreements, New York State illegally acquired approximately

250,000 acres of Oneida reservation land in violation of the Nonintercourse Act. See Oneida

Indian Nation of N.Y. v. County of Oneida, N.Y., 199 F.R.D. 61, 66 & n.3 (N.D.N.Y. 2000)

(“Oneida IIIa”). The case was inactive during the pendency of Oneida I and II. In 1998, the

United States intervened and joined the Oneidas in moving to add as defendants approximately

20,000 private landowners whom the Oneidas claimed were either liable for money damages or

should be ejected. In September 2000, the district court concluded, following Oneida II, that the

Oneidas could sue state entities for damages based on the illegal occupation of their historic

reservation land but that ejectment and money damages from the individual landowners was not

available, and the court declined to permit their joinder. See Oneida IIIa, 199 F.R.D. at 79-94.
In 1978 and 1979, the Oneidas also challenged New York State’s purchases of their

aboriginal lands in 1785 and 1788, under the Treaties of Fort Herkimer and Fort Schuyler, as

violations of the Articles of Confederation, the Treaty of Fort Stanwix, and the 1783

Proclamation. We concluded, however, that the State had the right to make such purchases

during the confederal period and dismissed the action. See Oneida Indian Nation of N.Y. v. New

York, 860 F.2d 1145 (2d Cir. 1988).

The next major litigation to reach our court was this group of consolidated cases where,

as we have seen, the District Court granted summary judgment to the OIN, determining that the 

Sherrill and Madison Properties remained reservation land immune from local taxation.

DISCUSSION

We review the grant of a motion to dismiss or a motion for summary judgment de novo,

drawing all reasonable inferences in favor of the nonmoving party. See Chambers v. Time

Warner, 282 F.3d 147, 152 (2d Cir. 2002); Young v. County of Fulton, 160 F.3d 899, 902 (2d

Cir. 1998). In reviewing a dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6), we

accept as true all material facts alleged in the complaint. Chambers, 282 F.3d at 152. “Dismissal

is inappropriate unless it appears beyond doubt that the plaintiff can prove no set of facts which

would entitle him or her to relief.” Id. (citation and internal quotation marks omitted). We apply

this same standard in reviewing a grant of judgment on the pleadings pursuant to Rule 12(c). 

Burnette v. Carothers, 192 F.3d 52, 56 (2d Cir. 1999). Summary judgment is appropriate if there

are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. 

Fed. R. Civ. P. 56(c). 
I. Basic Principles

Three basic principles inform the disposition of this action. The first is the Indians’ right

of occupancy on tribal land, or “Indian country,” which “may extend from generation to

generation, and will cease only by dissolution of the tribe, or their consent to sell to the party

possessed of the right of pre-emption.” New York Indians I , 72 U.S. at 771. The second,

embodied by the Nonintercourse Act, is federal preeminence over the disposition of land in

Indian country. Since “Congress alone has the right to say when the [United States’]

guardianship over the Indians may cease,” Boylan, 265 F. at 171, the sale or conveyance of

reservation land can only be made with congressional sanction, that is, “by treaty or convention

entered into pursuant to the Constitution.” 25 U.S.C. § 177 (2000). The third is federal

preemption, which prohibits states from imposing property taxes upon Indian reservation land

without congressional approval. New York Indians I, 72 U.S. at 771; see also Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 137 (1982) (“The power to tax is an essential attribute of

Indian sovereignty because it is a necessary instrument of self-government and territorial

management.”); cf. Boylan, 265 F. at 170.

There is no material dispute that the Sherrill Properties were part of the Oneidas’

aboriginal land and the tribe’s reservation as recognized by the Treaty of Canandaigua. Sherrill

contends, however, that because the properties are no longer within Indian country and the

Oneidas no longer exist as a tribe, they are subject to taxation. We first address these contentions

and then turn to the District Court’s procedural rulings.

II. Indian Country
11 Although § 1151 is a criminal statute, it “generally applies as well to questions of civil

jurisdiction.” DeCoteau v. District County Court, 420 U.S. 425, 428 n.2 (1975). It codified the

Act of June 25, 1948, 62 Stat. 757, which was passed to correct jurisdictional conflicts arising

from allotment policy and the subsequent restoration of surplus lands to tribal ownership in the

Indian Reorganization Act. Hagen v. Utah, 510 U.S. 399, 425 (1994) (Blackmun, J., dissenting). 

Its practical effect “was to designate as Indian country all lands set aside by whatever means for

the residence of tribal Indians under federal protection, together with trust and restricted Indian

allotments.” Okla. Tax Comm’n v. Sac & Fox Nation, 508 U.S. 114, 125 (1993) (quotation

omitted).

 In general, “Indian country” refers to the geographic area in which tribal and federal laws

normally apply and state laws do not. Section 1151 of Title 18 of the United States Code,

defining “Indian country,” provides:

The term “Indian country” . . . means (a) all land within the limits of any Indian

reservation under the jurisdiction of the United States Government,

notwithstanding the issuance of any patent, and, including rights-of-way running

through the reservation, (b) all dependent Indian communities within the borders

of the United States whether within the original or subsequently acquired territory

thereof, and whether within or without the limits of a state, and (c) all Indian

allotments, the Indian titles to which have not been extinguished, including

rights-of-way running through the same.

18 U.S.C. § 1151 (2000).11 

Dependent Indian communities encompass any “area . . . validly set apart for the use of

the Indians as such, under the superintendence of the Government.” Okla. Tax Comm’n v.

Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 511 (1991). Indian allotments are those

parcels allocated to tribes, as opposed to those opened to settlers, under federal policies designed

to accommodate the westward movement of settlers and to promote the integration of Indians

into the wider society. See generally Cass County, Minn. v. Leech Lake Band of Chippewa

Indians, 524 U.S. 103, 106-07 (1998) (discussing federal allotment policy). Under § 1151,

“[o]nce a reservation has been established, or a dependent Indian community shown to exist, it
will remain Indian country until terminated by Congress, irrespective of the nature of the land

ownership.” Robert N. Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a

Jurisdictional Maze, 18 Ariz. L. Rev. 503, 513 (1976).

As noted, land in Indian country, including reservation land, is not subject to state

taxation absent express congressional authorization. “The treaties and laws of the United States

contemplate the Indian territory as completely separated from that of the states; and provide that

all intercourse with them shall be carried on exclusively by the government of the union.” 

Worcester v. Georgia, 31 U.S. 515, 557 (1832); see also White Mountain Apache Tribe v.

Bracker, 448 U.S. 136, 151 (1980); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 765

(1985) (“[T]he Court consistently has held that it will find the Indians’ exemption from state

taxes lifted only when Congress has made its intention to do so unmistakably clear.”);

McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 173-81 (1973); Mescalero Apache Tribe

v. Jones, 411 U.S. 145, 148 (1973).

“The policy of leaving Indians free from state jurisdiction and control is deeply rooted in

the Nation’s history.” Rice v. Olson, 324 U.S. 786, 789 (1945). It traces from the “doctrine of

discovery,” the law of Indian land tenure which the Supreme Court developed in the early

nineteenth century to reflect European policy toward the Indians and to explain Indian

sovereignty relative to colonial authority. See Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543,

572-74 (1823). The doctrine provided that the “discovering” European nations (and later the

United States) held fee title to Indian aboriginal lands, subject to the Indians’ right of occupancy

and use. Oneida II, 470 U.S. at 234. As a result, no one could purchase Indian land or otherwise

terminate aboriginal title without the consent of the discovering nation’s sovereign. Id. As Chief
Justice Marshall explained in Johnson v. McIntosh:

In the establishment of these relations, the rights of the original inhabitants were,

in no instance, entirely disregarded; but were necessarily, to a considerable extent,

impaired. They were admitted to be the rightful occupants of the soil, with a legal

as well as just claim to retain possession of it, and to use it according to their own

discretion; but their rights to complete sovereignty, as independent nations, were

necessarily diminished, and their power to dispose of the soil at their own will, to

whomsoever they pleased, was denied by the original fundamental principle, that

discovery gave exclusive title to those who made it.

Johnson, 21 U.S. (8 Wheat.) at 574.

Generally speaking, nineteenth and twentieth century federal policy was consistent with

this approach to Indian sovereignty, despite a notably inconsistent vision of the Indians’

relationship to non-Indian citizens. While the tribes exercise inherent sovereign authority over

their members and land located within state boundaries, they are nevertheless “domestic

dependent nations” under federal protection. Cherokee Nation v. Georgia, 30 U.S. 1, 17 (1831);

see also Boylan, 265 F. at 172. The land they occupy is owned by the United States, which has

retained the authority to regulate conveyances. As we have observed, “[w]hile the state[s] ha[ve]

a right to make treaties with the Indians, [they] cannot interfere with the right[s] and obligations

of the federal government.” Boylan, 265 F. at 173. Although Indians’ dependent status prohibits

domestic and international political recognition, “it does assure them self-government, free of

most state law strictures, over their territory and members, and, to a more limited extent, over

non-Indians.” Getches at 373-74; see Boylan, 265 F. at 174. 

This “platonic notion[] of sovereignty,” embodied in the so-called “Indian sovereignty

doctrine,” historically gave state law “no role to play” within a tribe’s territorial boundaries. 

McClanahan, 411 U.S. 164, 168, 172 (1973). While courts have moved towards reliance on
firmer, more textually based concepts such as federal preemption to definitively resolve the rights

of Indian tribes vis-à-vis the states, see id., the Indian sovereignty doctrine remains relevant

because it provides a backdrop against which the applicable treaties and federal statutes must be

read.

A. Set Aside and Superintendence

Sherrill contends that, even accepting the proposition that the properties are located

within the Oneida reservation’s historic boundaries, the parcels are taxable because they are not

currently located within Indian country. Principally relying on Alaska v. Native Village of

Venetie Tribal Gov’t, 522 U.S. 520 (1998), Sherrill asserts that the properties are not in Indian

country because they were neither set aside by the federal government for Indian use nor placed

under federal superintendence. Rather, the properties were acquired in private, open-market

transactions and receive services from Sherrill, not the federal government.

In Alaska, the Supreme Court considered whether certain nonreservation land owned by

members of the Venetie tribe in fee simple was located in Indian country. Id. at 527. The land

had been part of the Neets’aii Gwich’in reservation, which had been disestablished pursuant to

the Alaska Native Claims Settlement Act, 43 U.S.C. §§ 1601 et seq. Title was then conveyed to

the Venetie native corporations as tenants in common, which in turn transferred title to the tribe. 

Id. at 524. Because the reservation had been disestablished, and because no allotments were

involved, “whether the Tribe’s land is Indian country depend[ed] on whether it f[e]ll[] within the

‘dependent Indian communities’ prong of the statute, § 1151(b).” Id. at 527. The Court

concluded that the land was not Indian country because it neither had been “set aside by the
12 The Alaska Court itself noted that it “had also held, not surprisingly, that Indian

reservations were Indian country.” 522 U.S. at 528 n.3; see also id. at 528-30 (discussing cases

where the Court had found “that Indian lands that were not reservations could be Indian country”

(emphasis added)). 

13 Sherrill’s argument that the Oneidas’ land does not meet federal set aside requirements

because it was originally allocated to the Indians by New York State, rather than the United

States, is incorrect. The 300,000 acres were a carve-out from the 1788 Treaty of Fort Schuyler,

and represented that portion of the Indians’ aboriginal homeland that had not been conveyed to

New York and thus never became state land. Oneida II, 470 U.S. at 231, Oneida IIIb, 194 F.

Supp. 2d at 139 (noting that Article 2 of the treaty “specifically states that the Oneidas ‘hold to

themselves and their posterity forever’ the ‘reserved lands’”); id. at 140 (concluding that “the

Treaty of Fort Schuyler cannot reasonably be understood to have divested the Oneidas of their

aboriginal title”). After the federal government assumed complete control over Indian affairs

Federal Government for the use of the Indians as Indian land” nor was “under federal

superintendence” – two requirements, the Court found, that applied equally to reservations,

dependencies, and allotments. Id. at 527, 532-34. 

Sherrill argues that because the OIN, like the Venetie, purchased the properties in fee and

can freely alienate them, the land cannot be in Indian country. We disagree. While questions

may arise as to whether nonreservation property owned by Indians is in Indian country, there are

no such questions with regard to reservation land, which by its nature was set aside by Congress

for Indian use under federal supervision. See United States v. John, 437 U.S. 634, 638-47 (1978)

(holding that tribe’s fee simple parcels on historic reservation were under federal control despite

the fact that federal supervision of the tribe had not been continuous); cf. Donnelly v. United

States, 228 U.S. 243, 269 (1913) (holding that reservation land is Indian country).12 

Because the Sherrill Properties are located on the Oneidas’ historic reservation land set

aside for the tribe under the Treaty of Canandaigua, they satisfy the set aside and superintendence

requirements of 18 U.S.C. § 1151.13 Moreover, just as Alaska concluded that the “mere
with the ratification of the Constitution, the Canandaigua Treaty recognized the Oneidas’

300,000-acre reservation in federal terms, stating that it “shall remain theirs, until they choose to

sell the same to the people of the United States, who have the right to purchase.” 7 Stat. 45.

14 Section 465 of the 1934 Indian Reorganization Act allowed some of the land alienated

under allotment to return to Indian hands. The section “grants the Secretary of the Interior

authority to place land in trust, to be held by the federal government for the benefit of the Indians

and to be exempt from state and local taxation after assuming such status.” Cass County, 524

U.S. at 114.

provision” of federal services on the tribe’s property did not make it Indian country, the provision

of certain state services to the Oneidas by Sherrill does not eliminate that status. See Alaska, 522

U.S. at 534.

B. Alienability

Alternatively, Sherrill argues that the properties are not in Indian country because they are

freely alienable. Relying on Cass County, Sherrill contends that the reacquisition of freely

alienable, former reservation land by an Indian tribe “does not cause the land to resume taxexempt status . . . unless and until [it is] restored to federal trust protection under [25 U.S.C. §

465].”14 Sherrill Br. at 35 (quoting Cass County, 524 U.S. at 115). Cass County, however, offers

Sherrill little help. There, Congress explicitly had made land in Indian country freely alienable

by providing for the “complete cession and relinquishment” of all tribal title in Minnesota. Cass

County, 524 U.S. at 108. Afterwards, the land had been subject to federal allotment and sold to

non-Indians. Because “alienability equals taxability,” the Court found the land in question to be

taxable. Id. at 109, 113 (citing County of Yakima v. Confederated Tribes & Bands of Yakima

Nation, 502 U.S. 251 (1992); Goudy v. Meath, 203 U.S. 146 (1906)). In contrast, the Sherrill
Properties are located on reservation land, a status which Congress has never changed. Since

Congress has not done so, the properties did not become freely alienable and taxable simply

because the OIN purchased them on the open market and currently holds them in fee simple. See

Solem v. Bartlett, 465 U.S. 463, 471 (1984) (“Once a block of land is set aside for an Indian

reservation and no matter what happens to the title of individual plots within the area, the entire

block retains its reservation status until Congress explicitly indicates otherwise.”). State and

local governments may not tax reservation land “[a]bsent cession of jurisdiction or other federal

statutes permitting it.” County of Yakima, 502 U.S. at 258. Sherrill can point to neither. 

Sherrill is troubled by the seeming “impossibility” that the Oneidas’ free-market purchase

of land within their ancient ancestral homeland could instantly render the parcels free from

taxation and by the potential hardship to local municipalities and residents resulting from the

Oneidas’ “recreat[ion]” of “a tribal homeland.” Sherrill Br. at 37. It suggests that this result is

inconsistent with the conclusion of other courts that, even when a reservation has not been

disestablished, Indians who no longer own parcels on the reservation cannot base claims to

possessory rights on the Nonintercourse Act. Id. at 32-34 (citing Oneida IIIa; Cayuga Indian

Nation v. Cuomo, Nos. 80-CV-930, 80-CV-960, 1999 WL 509442 (N.D.N.Y. July 1, 1999)). 

 But there is no inconsistency. The authorities Sherrill points to address the judicial

remedies available for interference with the possessory rights of Indian plaintiffs, not the

existence of those rights. In Yankton Sioux Tribe of Indians v. United States, 272 U.S. 351, 357-

59 (1926), for example, the Supreme Court held that the proper remedy for the wrongful taking

of Indian land that was subsequently settled and developed was monetary damages rather than

repossession by the tribe. This principle became known as the “impossibility” doctrine because
it was based on the impracticability of uprooting current property owners where Indians held a

valid possessory claim to land on which others had settled.

Our case is different. Recognizing the Oneidas’ possessory rights in their historic

reservation land, and the accompanying exemption from state taxation, does not require

uprooting current property owners, because the Oneidas currently own the properties in question. 

Consequently, the threat from eviction present in Oneida IIIa and Cayuga is not present here. 

And Sherrill’s argument that the removal of property from local tax rolls is a “hardship” that

“upsets settled expectations” only begs the question whether the city is authorized to tax the

properties.

The critical dichotomy, which Sherrill does not acknowledge, is between historic Indian

title and fee ownership of the land itself. Indian or aboriginal title is the right of a tribe to use

and occupy lands it has inhabited from time immemorial. See Oneida II, 470 U.S. at 234. When

a reservation has been disestablished, as in Alaska or Cass County, Indian title is extinguished

and the only pertinent inquiry for ownership purposes is fee title. But when Indian land has been

alienated in ways inconsistent with federal law, Indian title remains with the tribe. The Indiancountry status of the alienated land is irrelevant for tax purposes when non-Indians hold fee title,

since they pay state taxes. But when the tribe holding Indian title reacquires former reservation

land, both forms of title coexist. Cf. United States v. Sandoval, 231 U.S. 28, 48 (1913) (rejecting

position that Indian lands held in fee simple by Pueblo cannot be Indian country). The Indiancountry status of the land therefore becomes fully relevant: the state cannot tax it and the tribe

can no longer legally alienate it, at least without federal approval.

At first glance, this “coexistence” of titles appears uneasy, because the validity of the
Oneidas’ Indian title depends on a finding that the properties were alienated in violation of the

Nonintercourse Act. And if this is so, then the chain of fee simple title, of which the Oneidas are

now part, is invalid. This unease is ultimately unwarranted, however, because the OIN’s

possessory rights are grounded in its unextinguished Indian title, just as they were prior to the

1805 conveyance. Acquisition of the properties, as the tribe asserts, was the least disruptive

means of effectuating these possessory rights. Because the previous fee owners relinquished any

claims to the land, the OIN’s rights may be fully realized. Accordingly, we conclude that the

OIN’s purchase of the Sherrill Properties in fee simple neither rendered them freely alienable nor

deprived them of their Indian-country status.

III. Effect of the Buffalo Creek Treaty on Oneida’s Property Rights

Both of Sherrill’s arguments for why the properties are not in Indian country rest on the

claim that the land is no longer in an Indian reservation. This claim is grounded in the 1838

Buffalo Creek Treaty which, Sherrill and the amici contend, formally disestablished the Oneida

reservation. Again, we disagree. Before returning to the text of this treaty, it is helpful to note

certain basic canons of Indian treaty construction.

A. Canons of Indian Treaty Construction

Treaties are generally more closely linked to the historical events surrounding their

negotiation and passage than are private agreements. They are, accordingly, “construed more

liberally . . . , and to ascertain their meaning we may look beyond the written words to the history

of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw
15 This canon has been applied on numerous occasions to exempt tribes from state

taxation. See, e.g., Bryan v. Itasca County, 426 U.S. 373, 392-93 (1976); McClanahan, 411 U.S.

at 174-75 (1973); Squire v. Capoeman, 351 U.S. 1, 6-8 (1956); Carpenter v. Shaw, 280 U.S. 363,

366-67 (1930); Choate v. Trapp, 224 U.S. 665, 675-79 (1912); The Kansas Indians, 72 U.S. (5

Wall.) 737, 760 (1867).

Nation of Indians v. United States, 318 U.S. 423, 431-32 (1943). This is particularly true with

regard to Indian treaties. “‘The canons of construction applicable in Indian law are rooted in the

unique trust relationship between the United States and the Indians [with respect to tribal lands],’

and the Indians’ unequal bargaining power when agreements were negotiated.” Hagen, 510 U.S.

at 423 n.1 (Blackmun, J. dissenting) (quoting Oneida II, 470 U.S. at 247). This relationship, and

the notions of Indian sovereignty and self-government embodied in it, “provide[] an important

‘backdrop’ against which vague or ambiguous federal enactments must always be measured.” 

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 143 (1980) (quoting McClanahan, 411

U.S. at 172 (1973)).

It is, moreover, “well established that treaties should be construed liberally in favor of the

Indians, with ambiguous provisions interpreted to their benefit.” Oneida II, 470 U.S. at 247

(citations omitted). Any finding that Congress has abrogated Indian treaty rights is inappropriate

“[a]bsent explicit statutory language.” Oneida II, 470 U.S. at 247 (citation and internal quotation

marks omitted); cf. Or. Dep’t of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753, 774

(1985). Congress’s intention in that regard, in other words, must be “clearly expressed.”15

Hagen, 510 U.S. at 423 & n.1 (Blackmun J., dissenting).

B. Disestablishment and Diminishment Generally
16Beginning in the late-nineteenth century, Congress passed a series so-called “surplus

land acts,” forcing Indians onto individual allotments carved out of reservations and opening

unalloted lands to non-Indian settlers. 

The Supreme Court applied and elaborated these canons in considering issues of

reservation disestablishment and diminishment most recently in the “surplus land act” cases.16

These cases dealt with land claims arising from the allotment era and specifically addressed

whether certain unallotted lands opened for settlement to non-Indians remained in Indian country. 

Solem v. Bartlett, 465 U.S. 463 (1984), for example, involved a writ of habeas corpus sought by

a non-Indian who had been tried and convicted in state court for a crime committed on a Sioux

reservation. The question presented was whether the state had jurisdiction over the petitioner by

virtue of the Cheyenne River Act, which had authorized the Interior Secretary to allot a portion of

the reservation to homesteaders. In concluding that the reservation had not been diminished, the

Court set forth the standard for identifying the “clear” expressions of congressional intent needed

to find diminishment. It began by noting that

only Congress can divest a reservation of its land and diminish its boundaries. 

Once a block of land is set aside for an Indian Reservation and no matter what

happens to the title of individual plots within the area, the entire block retains its

reservation status until Congress explicitly indicates otherwise . . . . Congress

[must] clearly evince an intent to change boundaries.

Id. at 470 (emphasis added) (citations and internal quotation marks omitted). 

Although “[e]xplicit reference to cession or other language evidencing the present and

total surrender of all tribal interests” can be helpfully probative, particularly when buttressed by

fixed compensation for the opened lands, id., this language is not a prerequisite for a finding of

diminishment. Rather, an act’s legislative history and the subsequent treatment of the land
(including settlement patterns), may also suffice:

When events surrounding the passage . . . – particularly the manner in which the

transaction was negotiated with the tribes involved and the tenor of legislative

Reports presented to Congress -- unequivocally reveal a widely held,

contemporaneous understanding that the affected reservation would shrink as a

result of the proposed legislation, we have been willing to infer that Congress

shared the understanding that its action would diminish the reservation,

notwithstanding the presence of statutory language that would otherwise suggest

reservation boundaries remained unchanged. To a lesser extent, we have also

looked to events that occurred after the passage of a surplus land Act to decipher

Congress’ intentions. Congress’ own treatment of the affected areas, particularly

in the years immediately following the opening, has some evidentiary value, as

does the manner in which the Bureau of Indian Affairs and local judicial

authorities dealt with unalloted open lands. On a more pragmatic level, we have

recognized that who actually moved onto opened reservation lands is also relevant

to deciding whether a surplus land Act diminished a reservation. Where

non-Indian settlers flooded into the opened portion of a reservation and the area

has long since lost its Indian character, we have acknowledged that de facto, if not

de jure, diminishment may have occurred. In addition to the obvious practical

advantages of acquiescing to de facto diminishment, we look to the subsequent

demographic history of opened lands as one additional clue as to what Congress

expected would happen once land on a particular reservation was opened to

non-Indian settlers.

Solem, 465 U.S. at 471-72 (citations omitted); see also South Dakota v. Yankton Sioux Tribe,

522 U.S. 329, 344 (1998) (stating that the Court may consider “‘the historical context

surrounding the passage of the surplus land Acts,’ and to a lesser extent, the subsequent

treatment of the area in question and the pattern of settlement there” (quoting Hagen, 510 U.S. at

411)).

But when these elements, considered in their totality, “fail to provide substantial and

compelling evidence of a congressional intention to diminish Indian lands, we are bound by our

traditional solicitude for the Indian tribes to rule that diminishment did not take place and that the

old reservation boundaries survived the opening.” Solem, 465 U.S. at 472. The same analysis
applies to the termination or disestablishment of a reservation. See DeCoteau v. Dist. County

Court for the Tenth Judicial Dist., 420 U.S. 425, 444 (1975) ( “[The Supreme Court] does not

lightly conclude that an Indian reservation has been terminated . . . . ‘[T]he Court requires that

the congressional determination to terminate . . . be expressed on the face of the Act or be clear

from the surrounding circumstances and legislative history.’” (quoting Mattz v. Arnett, 412 U.S.

481, 505 (1973)).

Applying these principles, the Supreme Court has found language supporting

diminishment in cases where the operative portion of a surplus land act reflects an Indian

agreement to “cede, sell, relinquish and convey” opened lands. See, e.g., Yankton, 522 U.S. at

344; DeCoteau, 420 U.S. at 439, 441 n.22; Rosebud Sioux Tribe v. Kneip, 430 U.S. 584, 591 &

n.8 (1977). Similarly, in Hagen v. Utah, the operative language provided that “all the unallotted

lands within said reservation shall be restored to the public domain,” 510 U.S. at 412 (emphasis

added), which the Court found indicated a congressional intent to diminish. Id. at 414. 

 In each of these cases, the Supreme Court found a textually grounded intention to

diminish supported by legislative history. To varying degrees the Court also found other support

such as contemporaneous congressional and administrative statements, proclamations opening

the reservation to settlement, the state’s assumption of jurisdiction over the opened lands, and the

subsequent pattern of settlement. See Yankton, 522 U.S. at 351-57; Hagen, 510 U.S. at 416-21;

DeCoteau, 420 U.S. at 437-49; Rosebud, 430 U.S. at 592-615.

C. The Buffalo Creek Treaty

As we have seen, Articles 1 and 2 of the Buffalo Creek Treaty summarize the central
17 Sherrill and the State rely upon Article 2 of the Treaty, asserting that the Oneidas

agreed to the Kansas tract “as a permanent home for all the New York Indians, now residing in

the State of New York.” Buffalo Creek Treaty, Art. 2 (emphasis added). This provision,

however, applies only to those Indians “who have no permanent homes.” It is therefore not

applicable to the OIN, who had a permanent residence in New York State. Even if it were

applicable, the article does no more than Article 13 in revealing an intent by Congress or the

Oneidas to disestablish their reservation in New York.

bargain between the New York Indians and the federal government: the cession of the New York

Indians’ Wisconsin lands in exchange for reservation land in Kansas. Most of the remainder of

the Treaty addresses the Kansas tract and various other tribe-specific arrangements. Articles 10

and 14 contain explicit cession language for the New York territory of two tribes, the Senecas and

Tuscaroras. Buffalo Creek Treaty, arts. 10, 14; see New York Indians II, 170 U.S. at 21 (stating

that the Senecas’ and Tuscaroras’ agreements “indicate[d] an intention on the part, both of the

Government and the Indians, that they should take immediate possession of the tracts set apart for

them in Kansas”). In contrast, Article 13, which addresses the Oneidas, contains no such

language:

The United States will pay [certain sums to certain Oneidas] . . . for 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.

Buffalo Creek Treaty, art. 13 (emphases added). 

 Nothing in its text provides “substantial and compelling” evidence of Congress’s

intention to diminish or disestablish the Oneidas’ New York reservation.17 There is no specific

cession language, and no fixed-sum payment for opened land in New York; rather there is only

the possibility of a sale for “uncertain future proceeds.” DeCoteau, 420 U.S. at 448 (describing
18 Contrary to the contention of Sherrill and New York State, consideration of the Gillet

declaration here is proper. See Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

172, 196 (1999). Senate amendments to the Buffalo Creek Treaty in June 1838 required a federal

commissioner to explain its meaning to the tribes before it could take effect. Following Gillet’s

declaration to the Oneidas, the tribe assented to the treaty, and this assent – which refers to

Gillet’s declaration and includes his affirmation that the assent was voluntary – appear as

addenda to the document as ratified. See New York Indians II, 170 U.S. at 24 (“[A] written

declaration annexed to a treaty at the time of its ratification was as obligatory as if the provision

had been inserted in the body of the treaty itself.”) (citing Doe v. Braden, 57 U.S. (16 How.) 635,

656 (1853)).

arrangement in Mattz, 412 U.S. 481). Article 13 at best is ambiguous about whether removal to

Kansas was required. More properly, it reflects a simple agreement to agree. While the Oneidas

agreed to remove, removal was conditioned on speculative future arrangements between the

Indians and a third party, New York’s governor. See New York Indians II, 170 U.S. at 28 (“It . . .

appears, from the eleventh, twelfth, and thirteenth findings [of the Treaty], that the President

never fixed any time for [the Indians’] removal, as was contemplated in the third article.”) This

contingency is reflected by the comments of Ransom Gillet, a federal Indian commissioner who

participated in the Treaty negotiations and whose declaration is appended to the final document. 

Gillet stated that, in obtaining the Oneidas’ consent to the treaty, he “most solemnly assure[d]

them that the treaty does not and is not intended to compel the Oneidas to remove from their

reservation in the State of New York . . . . The treaty gives them lands if they go to them and

settle there but they need not go unless they wish to. When they wish to remove they can sell their

lands to the Governor of the State of New York and then emigrate. But they will not be

compelled to sell or remove.”18 Statement of Ransom H. Gillet at Oneida Castle, Aug. 9, 1838

(emphasis added); see also Report of the Committee of Indian Affairs, State of New York, Mar.

24, 1847, at 4 (transcribing statement by a federal Indian commissioner to the Six Nations that
19This statute gives the courts of New York civil jurisdiction in actions “between Indians”

or “between one or more Indians and any other person or persons.” 25 U.S.C. § 233 (2000). 

Notably, it also provides that nothing in it “shall be construed as subjecting the lands within any

Indian reservation in the State of New York to taxation for State or local purposes.” Id.

they were not obligated to remove west). As it turned out, the sales to New York State were never

accomplished, and the planned removal never took place. Oneida IIIb, 194 F. Supp. 2d at 142.

Article 3 of the Treaty, moreover, contemplates that some tribes might not remove from

their New York lands:

[S]uch of the tribes of the New York Indians as do not accept and agree to remove

to the country set apart for their new homes within five years, or such other time

as the President may, from time to time, appoint, shall forfeit all interest in the

lands so set apart, to the United States.

Buffalo Creek Treaty, art. 3 (emphasis added); see New York Indians II, 170 U.S. at 28. 

Accordingly, the Treaty’s text contains neither an obligation to remove nor any indication of a

congressional intention to disestablish the Oneidas’ New York reservation.

Sherrill and the amici nonetheless observe that certain legislative and administrative

documents, such as “representative” reports of the Commissioner of Bureau of Indian Affairs

spanning the period 1890 to 1997 and a 1981 Senate Report preceding the passage of New York’s

Indian jurisdictional statute, 25 U.S.C. § 233,19 demonstrate that the Oneidas no longer have a

New York reservation. While congressional and administrative references to the reservation may

bear some general relevance to congressional intent, see Yankton, 522 U.S. at 351, the references

cited by Sherrill, the earliest of which was decided a half-century after the Treaty’s proclamation,

indicate little if anything about Congress’s intent in 1838. Given the absence of anything in the

Buffalo Creek Treaty’s text or legislative history supporting disestablishment, we conclude that
20 Most of these documents, in particular those published by the Department of the

Interior and the Commissioner of Indian Affairs, appear to rely on one another. And one of

them, the Department of the Interior’s 1997 Annual Report on Indian land, acknowledges that

thirty-two acres in Madison County is under the jurisdiction of the Bureau of Indian Affairs

(“BIA”). This is, presumably, the same land we referred to as federally protected land in Boylan.

 265 F. at 165-68. 

Further, the fact that certain congressional documents and maps of the area, introduced by

New York State on appeal, omit mention of an Oneida reservation in New York State does not

conclusively indicate disestablishment. In fact, other relatively recent maps and documents, as

the amici recognize, do reveal such a reservation.

21 Contrary to the suggestion of Madison and Oneida Counties, the fact that, under the

1843 law, individual Indians could hold the land in common, and could sell it to non-Indians

under specified circumstances, does not reflect the disestablishment of the reservation.

these later documents do not “unequivocally reveal” the intention necessary to demonstrate

disestablishment.20 Solem, 465 U.S. at 471.

Moreover, two enactments in the wake of the Buffalo Creek Treaty weigh against

disestablishment. Under an 1842 treaty between the Oneidas and New York, certain Indians who

had not migrated to Wisconsin sold a portion of their New York land (amounting to some 1100

acres) to the State. This treaty provided for the conveyance of certain lots to the State and other

lots to non-removing Indians to be held as “common property.” Boylan, 265 F. at 168 (quoting

Treaty of 1842, arts. 1, 6). We later described this purchase as “such portion of the reservation as

represented the equitable share in the proportion to the number of Indians who migrated.” Id. at

167-68 (emphasis added). Finally, an 1843 enactment of the New York legislature, which sought

to allow the Oneidas to hold their lands in severalty and (improperly) to alienate them by majority

vote of the chiefs and head men of the tribe, makes explicit reference to “lands and property in the

Oneida reservation.” Id. at 169 (emphasis added) (quoting Act Relative to the Oneida Indians,

Laws of the State of New York, 66th Sess., 244-46, Ch. 185, Sec. 1 (Apr. 8, 1843)).21
Sherrill and New York State also suggest that federal Indian removal policy, reflected in

the Buffalo Creek Treaty, itself requires a finding that Congress intended to disestablish the

reservation. In particular, the State argues that the “removal policy’s goal of reducing conflicting

state and tribal sovereignty could be accomplished only if Oneida sovereignty over the area from

which the Nation was obligated to remove was terminated.” New York Br. at 13. But this

argument ignores both the requirement that removal language be “clearly expressed,” as well as

the text of the Removal Act, which permits the President to provide western lands to “such tribes

or nations of Indians as may choose to exchange the lands where they now reside, and move

there.” 4 Stat. 411 (emphasis added). The State’s argument also ignores the success of the

Buffalo Creek Treaty in facilitating the removal of tribes other than the OIN. As the lower court

found, the Treaty provided for the absolute cession of New York land for certain tribes, in

particular the Senecas and Tuscaroras. The fact that certain parts of the Treaty provided for

cession and other parts did not demonstrates that when Congress wished to disestablish a

reservation, it knew what language to employ.

Sherrill and the amici next argue that the subsequent treatment of the reservation, in

particular the pattern of its settlement and its jurisdictional history, reflects a congressional

intention to disestablish. They point out that few Oneida Indians reside today in Madison and

Oneida Counties, and they contend that the unabated reduction over time of the reservation’s 

members and acreage supports de facto disestablishment. 

 At the time of the Buffalo Creek Treaty’s proclamation, however, only 5000 of the

original 300,000 acres remained under Oneida ownership, principally due to sales of land to the

State. And, according to the amici’s evidence, by far the largest influx of non-Indians to both
Madison and Oneida Counties likewise occurred prior to 1840. Br. of Amici Curiae Madison

County and Oneida County at 11 (table); id. at 2, 7 (stating that “[b]y the early nineteenth century,

the area had lost its Indian character and had been settled and developed by non-Indians”). Not

surprisingly, the most significant population changes occurred when the bulk of the land was

alienated. Id. at 11. The fact that the Indian population and reservation acreage further decreased

between 1840 and 1920 is not persuasive evidence that the Buffalo Creek Treaty was meant to

disestablish the reservation.

In any event, subsequent settlement patterns are of limited use in demonstrating

disestablishment. Yankton Sioux, 522 U.S. at 356 (finding demographic evidence the “least

compelling” because “[e]very surplus land Act necessarily resulted in a surge of non-Indian

settlement and degraded the ‘Indian character’ of the reservation, yet we have repeatedly stated

that not every surplus land Act diminished the affected reservation”); Hagen, 510 U.S. at 440-41

(Blackmun, J., dissenting) (“Absent other plain and unambiguous evidence of a congressional

intent, we never have relied upon contemporary demographic or jurisdictional considerations to

find diminishment.”). Because the Oneidas sold most of their land to the State or private parties

well before the Buffalo Creek Treaty and the flood of non-Indians into the area is not clearly

linked to the Treaty, the gradual reduction in the number of Oneidas living on their reservation

does not reflect a clear congressional intent to disestablish it.

Finally, Sherrill contends that the continued existence of the Oneidas’ reservation is

incompatible with the damage award they received in New York Indians II as a consequence of

the appropriation of their Kansas land. Recall that in New York Indians II, the Supreme Court

found that the Buffalo Creek Treaty had effected a present grant of the Kansas lands to the OIN
and that, because the land had been improperly appropriated and settled by non-Indians, the tribes

were entitled to damages in the amount the government had received as the sale price. 170 U.S. at

19-21, 36. The fact that the OIN received a portion of the resulting $2 million award, Sherrill

argues, evidences an “exchange” of the Oneidas’ New York land for land in Kansas, which

supports a finding of disestablishment. 

The focus of the Buffalo Creek Treaty, however, was the exchange of Wisconsin land –

not New York land – for that in Kansas. See Buffalo Creek Treaty, arts. 1, 2. The Supreme

Court’s decision in New York Indians II, as Sherrill acknowledges, reflects this bargain. See 170

U.S. at 2 (petition stated that “the claimants ceded and relinquished to the United States all their

right, title, and interest in and to certain lands of the claimants at Green Bay, State of Wisconsin”);

id. at 19, 29 (discussing case in terms of the “seizure and sale of the Wisconsin lands”). The

divestiture by the Senecas and Tuscaroras of their New York land, as the Court pointed out,

indicated those tribes’ “intention . . . that they should take immediate possession of the tracts set

apart for them in Kansas.” Id. at 21. The Court said nothing about such a divestiture by the

Oneidas.

Sherrill contends that the damage award “logic[ally]” incorporates the unstated conclusion

that the Oneidas’ New York reservation had been disestablished. Sherrill Br. at 40. This

argument, for which Sherrill has provided no authority, ignores what was decided in New York

Indians II. The exchange of Wisconsin for Kansas lands under the Treaty itself was the rationale

for the award; the fact that some of the Oneidas’ land had not been conveyed to the government

was irrelevant. The few thousand acres of New York reservation land at issue appear even less

significant to the award when one considers that the Treaty included a 65,000-acre carve-out in
22 The case against disestablishment is further supported by the text of Article 3, which

preserves Indian title to the Kansas lands (by preventing forfeiture of such title) as long as the

tribe has agreed to remove; there is no divestiture requirement or other exchange. The Supreme

Court in New York Indians II pointed out that the Oneidas had met the condition to avoid

forfeiture merely by their agreement to remove. 170 U.S. at 26. Contrary to the State’s

suggestion, the Oneidas’ agreement to remove is distinguishable from an agreement to cede their

reservation; the latter could have occurred as a result of the former, but it never did because the

applicable conditions were not satisfied. 

Wisconsin so the Oneidas could maintain a reservation there. Buffalo Creek Treaty, art. 1.22

Construing the Buffalo Creek Treaty liberally and resolving, as we must, all ambiguities in

the Oneidas’ favor, we conclude that neither its text nor the circumstances surrounding its passage

and implementation establish a clear congressional purpose to disestablish or diminish the OIN

reservation.

IV. Continuous Tribal Existence

Sherrill further argues that there are, at a minimum, “disputed issues of fact” as to whether

the OIN has maintained its tribal existence so as to be entitled to claim the properties as

reservation land. It argues that the fact that the OIN is a currently recognized tribe is irrelevant,

because as a practical matter it has not existed continuously over the last century. In support of

this argument, Sherrill chronicles the gradual reduction in population of the OIN, pointing to

statistics reflecting the non-Indian influx to Madison and Oneida Counties. Any lapse in tribal

identity, Sherrill concludes, rendered the OIN’s land freely alienable and precludes the tribe from

asserting rights in its historic reservation land. Such a determination would, in turn, defeat the

OIN’s claims to tax exemption.

Sherrill’s argument assumes that a tribe’s land loses its reservation status in the event of a
23Nor do any of the authorities listed by the dissent. It is true that some groups of Indians

claiming tribal status, which were not federally recognized tribes, have been required to

demonstrate “continuous tribal existence” in order to establish standing under the Nonintercourse

Act. See Oneida IIIb, 194 F. Supp. 2d at 121 n.11 (citing Mashpee Tribe v. New Seabury Corp.,

592 F.2d 575 (1st Cir. 1979) (Mashpee I), and Canadian St. Regis Band of Mohawk Indians v.

State of N.Y., 146 F. Supp. 2d 170, 184 (N.D.N.Y. 2001)). But Sherrill and Madison have

challenged neither the OIN’s standing nor its current tribal status. In other cases, when relevant,

courts have quite logically noted that tribes can only recover under the Nonintercourse Act if they

“were tribes at the time the land was alienated.” Mashpee Tribe v. Secretary of the Interior, 820

F.2d 480, 482 (1st Cir. 1987) (Mashpee II). But there is no question that the OIN was a tribe and

in a trust relationship with the federal government at the time of the conveyances at issue. 

Neither the dissent nor Sherrill has identified any authority for the proposition that to sustain a

claim under the Nonintercourse Act a federally recognized Indian tribe must demonstrate that its

tribal structure remained intact continuously after unlawful conveyances of tribal land.

temporary lapse of tribal organization or identity. We find, however, no requirement in the law

that a federally recognized tribe demonstrate its continuous existence in order to assert a claim to

its reservation land. Indeed, the Supreme Court held in United States v. John that a Mississippi

resident of Choctaw Indian blood was properly under federal jurisdiction when he committed a

crime on Choctaw land which had been designated a reservation, even though the tribe was

“merely a remnant of a larger group of Indians, long ago removed . . . [and] federal supervision

over them has not been continuous.” 437 U.S. 634, 653 (1978). 

The authority upon which Sherrill relies, which concerns the Nonintercourse Act, does not

indicate otherwise.23 In Golden Hill Paugusett Tribe v. Weicker, 39 F.3d 51, 56 (2d Cir. 1994),

we stated that, in order to make a prima facie case based on a violation of the Act, a group

claiming to be an Indian tribe must establish that: “(1) it is an Indian tribe, (2) the land [claimed to

have been alienated in violation of the Act] is tribal land, (3) the United States has never

consented to or approved the alienation of this tribal land, and (4) the trust relationship between
24Sherrill, citing Mashpee II, argues that a temporary lapse of tribal status, however

involuntary or unintended, causes “Non-Intercourse Act coverage [to] terminate[].” Sherrill Br.

at 44. But Mashpee I makes clear that an “involuntary process of assimilation” is insufficient to

constitute abandonment of tribal status, which can only occur voluntarily and willingly. See

Mashpee I, 592 F.2d at 587. This requirement underscores the fact that a temporary lapse of

tribal organization is insufficient to sever the trust relationship between a federally recognized

tribe and the federal government. See The Kansas Indians, 72 U.S. at 757.

the United States and the tribe has not been terminated or abandoned.” All four elements are

satisfied here. It is undisputed that the OIN is federally recognized and the Bureau of Indian

Affairs exercises jurisdiction over, at a minimum, a thirty-two acre parcel of land within Madison

County, which formed part of the OIN’s historic reservation. This reservation has never been

disestablished, and accordingly, the “trust relationship” between the federal government and the

Oneidas has never been terminated. Nor have the Oneidas ever voluntarily abandoned this trust

relationship by “choos[ing] to terminate tribal existence.” Mashpee Tribe v. New Seabury Corp.,

592 F.2d 575, 587 (1st Cir. 1979) (Mashpee I).24 Finally, the federal government never approved

the alienation of the land at issue.

Moreover, contrary to Sherrill’s contentions, even if continuous tribal existence were

required, the record before us shows it. Once a tribe has been recognized, the removal of that

recognition, like reservation diminishment or disestablishment, is a question for other branches of

government, not the courts. See United States v. Holliday, 70 U.S. (3 Wall) 407, 419 (1865) (“In

reference to all matters [of tribal organization], it is the rule of this court to follow the action of

the executive and other political departments of the government, whose more special duty it is to

determine such affairs.”); see also Mashpee Tribe v. Secretary of the Interior, 820 F.2d 480, 484

(1st Cir. 1987) (Mashpee II) (same). The OIN is a federally recognized tribe that is a direct
25 These authorities also include a decision of the Northern District of New York, United

States v. Elm, 25 F.Cas. 1006, 1008 (N.D.N.Y. 1877), stating that since 1838, the Oneidas’

“tribal government ha[d] ceased as to those who remained in this state.” However, the decision

also suggests continued tribal status, as the Oneidas “continued to designate one of their number

as chief,” albeit for certain financial tasks, and states that there are “20 families which constitute

the remnant of the Oneidas resid[ing] in the vicinity of their original reservation . . . their

dwellings . . . interspersed with the habitations of the whites.” Id.

26 Felix Cohen, whom Sherrill also cites, relies on the same source as the 1916 letter, a

1915 memorandum by a lawyer in the Office of Indian Affairs. Cohen at 416-17 n.6 (1942).

descendant of the original Oneida Indian Nation. Oneida II, 470 U.S. at 230; Oneida IIIb, 194 F.

Supp. 2d at 119. And Sherrill has identified no legislative or executive action withdrawing

recognition. 

Rather, the authorities offered by Sherrill merely reflect the opinions of a handful of

government officials and commentators, at various points in the last century, that Oneida tribal

relations had ceased.25 In particular, letters from the Assistant Commissioner of Indian Affairs in

1916 and 1925 stated that the tribe no longer existed in New York.26 This conclusion is, to some

degree, understandable, since most of the Oneida reservation land had been sold to the State, with

the remaining parcels divided among members who, increasingly, lived separately from one

another and received state services. See Boylan, 265 F. at 167-70. But these informal

conclusions are ultimately irrelevant because they do not supply the necessary federal action

withdrawing the tribe from government protection we held was required in Boylan. Id. at 171.

Moreover, this Court determined in Boylan in 1920 – between the time of the two letters in

question – that the Oneida tribe did in fact exist. Id. at 171-72.

Because the Oneidas’ reservation was not disestablished and because the Sherrill

Properties are located within that reservation, we conclude that Sherrill can neither tax the land
27 We also agree with the lower court’s conclusion that Sherrill’s counterclaims were

improper because the tribe is immune from suit in federal court. See Oneida IV, 145 F. Supp. 2d

at 258-59; see Okla. Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 509

(1991) (stating that suits and cross-suits against Indian tribes are barred by tribal sovereign

immunity absent a clear waiver by the tribe or congressional abrogation) (citing United States

Fidelity & Guaranty Co., 309 U.S. 506, 511-13 (1940)).

nor evict the Oneidas. Accordingly, we: (i) affirm the denial of Sherrill’s motion for summary

judgment or for a preliminary injunction based on its counterclaims in the Lead case; and (ii)

affirm the grant of the OIN’s cross-motion for summary judgment on its taxation claim and

Sherrill’s counterclaims27 in the Lead case and its cross-motion for summary judgment in the

Eviction case.

V. Sherrill’s Rule 56(f) Motion

Sherrill and the State of New York contend, in the alternative, that the District Court

prematurely decided the OIN’s cross-motions for summary judgment without affording Sherrill an

adequate opportunity to conduct discovery on certain critical matters, in particular: (i) whether the

Sherrill Properties are located within the boundaries of the reservation recognized by the

Canandaigua Treaty; (ii) whether Congress modified the Canandaigua Treaty via the Buffalo

Creek Treaty or otherwise; (iii) the Oneidas’ continuous tribal existence; (iv) whether the

properties were encompassed by the 1805 and 1807 land transfers; and (v) whether those transfers

violated the Nonintercourse Act.

Federal Rule of Civil Procedure 56(f) provides an opportunity to postpone consideration of

a motion for summary judgment and to obtain additional discovery by describing: (i) the

information sought and how it will be obtained; (ii) how it is reasonably expected to raise a
genuine issue of material fact; (iii) prior efforts to obtain the information; and (iv) why those

efforts were unsuccessful. Sage Realty Corp. v. Ins. Co. of N. Am., 34 F.3d 124, 128 (2d Cir.

1994). The District Court denied Sherrill’s motion principally because Sherrill failed to explain

why it was unable to obtain the discovery sought, much of which was a matter of public record,

before the close of briefing. The court also noted that Sherrill had failed to identify the

information sought with particularity. We review a lower court’s denial of a Rule 56(f) motion

for abuse of discretion. Paddington Partners v. Bouchard, 34 F.3d 1132, 1137 (2d Cir. 1994).

Sherrill’s Rule 56(f) affidavit is simply a list of issues on which it desires more

information. No specific facts or documents are requested, and Sherrill fails to indicate how any

of the information sought could be expected to create genuine factual issues. Sherrill, moreover,

has had a sufficient opportunity to develop and contest the issues on which it now claims to need

additional discovery. Sherrill, like the amici, has submitted voluminous evidence in support of its

position on disestablishment, tribal existence, and the Nonintercourse Act, evidence which the

District Court fully considered. Sherrill was the first party to move for summary judgment – five

months into discovery – on the issue of the OIN’s tax liability. Under these circumstances, we

conclude that the District Court did not abuse its discretion in denying the motion.

VI. Sherrill’s Motion for Leave to Amend

In the Lead case, Sherrill moved for leave to amend its answer to add the affirmative

defenses of statute of limitations, laches, waiver, estoppel, in pari delicto, and ratification, all of

which the lower court denied on futility grounds. Oneida IV, 145 F. Supp. 2d at 259-60. On

appeal, Sherrill contends that the District Court improperly denied it the opportunity to advance
these defenses. We disagree.

We review the denial of a motion for leave to amend for abuse of discretion. Jones v.

N.Y. State Div. of Military & Naval Affairs, 166 F.3d 45, 49 (2d Cir. 1999). Where, as here, the

denial was based on an interpretation of law, we review that legal conclusion de novo. Id. While

leave to amend a pleading shall be freely granted when justice so requires, Fed. R. Civ. P. 15(a),

amendment is not warranted in the case of, among other things, “futility.” Foman v. Davis, 371

U.S. 178, 182 (1962). A proposed amendment to a pleading would be futile if it could not

withstand a motion to dismiss pursuant to Rule 12(b)(6). Ricciuti v. N.Y.C. Transit Auth., 941

F.2d 119, 123 (2d Cir. 1991).

We agree with the lower court that Sherrill’s proposed defenses would not survive such a

motion. We find the in pari delicto and ratification defenses insufficient. Oneida IV, 145 F.

Supp. 2d at 260. Addressing delay-based arguments in Oneida II, the Supreme Court held that no

federal limitations period applied and that it would be improvident to apply a parallel state

requirement in this uniquely federal context. 470 U.S. at 240-44. As the Court pointed out, there

is no time-bar for claims brought by the United States on behalf of Indians “to establish title to, or

right of possession of, real or personal property.” Id. at 241-43 & n.15. The Oneida II majority

also strongly suggested that a laches defense is improper for similar reasons. Id. at 244-45 & n.16

(“[T]he application of laches would appear to be inconsistent with established federal policy.”)

(citing Ewert v. Bluejacket, 259 U.S. 129, 137-38 (1922) (doctrine of laches cannot bar a suit by

individual Indians challenging land transactions for violating federal statutory restrictions on

alienation)). 

We likewise have found – in ruling on the merits of a defense in an action involving an
Oneida land claim – that time-bars are inconsistent with established federal policy, because “to

permit a state to enact and invoke a time-bar would in effect allow a state to terminate the

relationship of trust and guardianship between the United States and the Oneidas . . . [which] may

only be terminated by federal law.” Oneida Indian Nation of N.Y. v. New York, 691 F.2d 1070,

1084 (2d Cir. 1982); see also Oneida Indian Nation of N.Y. v. New York, 860 F.2d 1145 (2d Cir.

1988) (accepting rejection of laches defense as law of the case). The result would be the same

regardless of whether the laches defense were asserted under federal or state law. Oneida Indian

Nation, 691 F.2d at 1084.

In asserting its waiver and estoppel defenses, Sherrill contends that the OIN’s claim to

aboriginal title in the properties is inconsistent with its open-market purchases. As discussed,

there is, however, no inconsistency; Indian title and fee simple ownership of reservation land are

distinct. We see no reason why a tribe holding both fee simple title and Indian title in a property

should be prevented from suing based on the latter. Accordingly, we agree with the lower court’s

conclusion that Sherrill’s proposed amendment to its answer in the Lead case was futile.

VII. Motion to Dismiss the Members Case

In the Members case, Sherrill contends that the OIN’s officers violated state law by failing

to pay property taxes and collect state sales taxes on the Sherrill Properties. Its claims against the

officers with regard to property taxes are insufficient for the same reason its counterclaims against

the tribe are insufficient: the parcels are not taxable. Sherrill itself acknowledged the possibility

of this result in its brief on appeal. See Sherrill Br. at 59 (“If . . . this Court reverses the finding of

Indian country . . . then the pleading in the Members Case is sufficient . . . .”).
28We need not address the additional ground upon which the District Court found the

Members case insufficient, namely, that Sherrill failed to add the OIN as a necessary and

indispensable party. See Oneida IV, 145 F. Supp. 2d at 263-64.

Sherrill seeks damages for unjust enrichment arising out of the officers’ alleged nonpayment of state sales taxes, in particular for goods sold to non-Indians. Compl., Members Case,

¶¶ 25-27, 41-45. While individual tribal officers may be liable for nonpayment of state sales taxes

where they act outside the authority of the tribe, see Potawatomi, 498 U.S. at 514 (citing Ex parte

Young, 209 U.S. 123 (1908)); Bassett v. Mashantucket Pequot Tribe, 204 F.3d 343, 355, 358-59

(2d Cir. 2000), there is no allegation that the OIN’s officers – whom Sherrill sued in their official

capacities – did so here. Consequently, Sherrill’s claim for damages against the OIN’s officers is

no different from a claim against the tribe itself for non-payment of sales taxes. Accordingly,

since the District Court correctly concluded that these officers were immune from suit on the

claims related to collection of sales taxes, we affirm the dismissal of the Members case.28

VIII. Motions in the Related Case

Madison appeals from (i) the District Court’s denial of its motion to dismiss pursuant to

Federal Rule of Civil Procedure 19 for failure to add the Wisconsin and Thames Oneidas as

plaintiffs in the Related case; and (ii) the District Court’s sua sponte award of judgment on the

pleadings to the OIN. See Oneida IV, 145 F. Supp. 2d at 264; Oneida Indian Nation of N.Y. v.

Madison County, 145 F. Supp. 2d 268 (N.D.N.Y. 2001).
A. Rule 19

Reviewing for abuse of discretion, Viacom Int’l, Inc. v. Kearney, 212 F.3d 721, 725 (2d

Cir. 2000), we affirm the lower court’s determination that the Wisconsin and Thames Oneidas

were not necessary (and hence not indispensable) parties. Federal Rule of Civil Procedure 19(a)

provides:

A person who is subject to service of process and whose joinder will not deprive

the court of jurisdiction over the subject matter of the action shall be joined as a

party in the action if (1) in the person’s absence complete relief cannot be

accorded among those already parties, or (2) the person claims an interest relating

to the subject of the action and is so situated that the disposition of the action in

the person’s absence may (i) as a practical matter impair or impede the person’s

ability to protect that interest or (ii) leave any of the persons already parties

subject to a substantial risk of incurring double, multiple, or otherwise

inconsistent obligations by reason of the claimed interest. 

Should a district court determine that a non-party is necessary but is not able to join him,

Rule 19(b) requires it to consider, among other things, “to what extent a judgment rendered in the

person’s absence might be prejudicial to the person or those already parties,” in determining

whether the action must be dismissed.

Madison contends that the Wisconsin and Thames Oneidas are necessary and

indispensable parties in the Related case because of their involvement in other land claim

litigation currently pending in the Northern District of New York. See supra Part II; Oneida IIIa,

199 F.R.D. 61; Oneida IIIb, 194 F. Supp. 2d 104. The parties whose interests Madison contends

require protection, however, deny they require it. On the contrary, the Wisconsin and Thames

Oneidas insist that their interests are aligned with, and adequately protected by, the OIN and they

will not be prejudiced if they are not joined. See 6/15/00 Aff. of Arlinda Locklear; 6/23/00 Aff. of

Carey R. Ramos (submitted in 00-CV-506). Moreover, the OIN can obtain the requested
declaratory and injunctive relief without the other branches as parties. Accordingly, the District

Court did not abuse its discretion in determining that the Wisconsin and Thames Oneidas are not

necessary, and hence not indispensable, parties. See ConnTech Dev. v. Univ. of Conn. Ed.

Props., Inc., 102 F.3d 677, 682 (2d Cir. 1996).

B. Judgment on the Pleadings

In awarding judgment on the pleadings in the Related case to the OIN, the District Court

determined that:

[a]ll the facts in the Lead Case likewise apply in this case. Moreover, as Madison

County appeared as amicus curiae in the Lead Case, it had a full opportunity to be

heard on the taxation issue. Accordingly, based upon the foregoing determination

that the properties at issue are Indian Country and therefore not taxable, the

Nation is entitled to judgment on the pleadings. 

Oneida IV, 145 F. Supp. 2d at 264.

We believe that this sua sponte dismissal of the Related case “on the pleadings” was

procedurally improper. Under Federal Rule of Civil Procedure 12(c), a party may move for

judgment on the pleadings only “[a]fter the pleadings are closed.” Although Madison had moved

to dismiss the complaint under Rule 19(a) for failure to join necessary and indispensable parties, it

has not answered the complaint. Madison contends that, if it had an opportunity to answer, it

would raise defenses distinct from those of Sherrill – although it neglects to articulate those

defenses. Further, the sole ground the court provided for its decision to dismiss the case was that

“[a]ll the facts in the Lead Case apply in this case.” Different parcels, however, are at issue. And

although there is some evidence in the record indicating that the Madison properties were part of

the Oneidas’ historical reservation, this evidence is meager. It may well be that the lower court’s
instincts on the merits of Madison’s claims are correct. But rather than attempt to decide the issue

based on an incomplete record, we vacate this portion of the judgment and remand for further

proceedings.

CONCLUSION

For the foregoing reasons, we affirm: (i) the denial of Sherrill’s motion for summary

judgment or, in the alternative, for a preliminary injunction based on its counterclaims in the Lead

case; (ii) the denial of Sherrill’s motion for leave to amend its answer in the Lead case; (iii) the

denial of Sherrill’s Rule 56(f) motion; (iv) the grant of the OIN’s cross-motion for summary

judgment in the Lead and Eviction cases; and (v) the grant of the OIN’s officers’ motion to

dismiss the Members case. We vacate the dismissal of the Related case and remand for further

proceedings consistent with this opinion.

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