COUNTY OF ONEIDA v. ONEIDA INDIAN NATION

JUSTICE POWELL delivered the opinion of the Court.*

These cases present the question whether three Tribes of the Oneida Indians may bring a suit for damages for the occupation and use of tribal land allegedly conveyed unlawfully in 1795.

I

The Oneida Indian Nation of New York, the Oneida Indian Nation of Wisconsin, and the Oneida of the Thames Band Council (the Oneidas) instituted this suit in 1970 against the Counties of Oneida and Madison, New York. The Oneidas alleged that their ancestors conveyed 100,000 acres to the State of New York under a 1795 agreement that violated the Trade and Intercourse Act of 1793 (Nonintercourse Act), 1 Stat. 329, and thus that the transaction was void. The Oneidas' complaint sought damages representing the fair rental value of that part of the land presently owned and occupied by the Counties of Oneida and Madison, for the period January 1, 1968, through December 31, 1969.

The United States District Court for the Northern District of New York initially dismissed the action on the ground that the complaint failed to state a claim arising under the laws of the United States. The United States Court of Appeals for the Second Circuit affirmed. Oneida Indian Nation v. County of Oneida, 464 F.2d 916 (1972). We then granted certiorari and reversed. Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) (Oneida I). We held unanimously that, at least for jurisdictional purposes, the Oneidas stated a claim for possession under federal law. Id., at 675. The case was remanded for trial.

On remand, the District Court trifurcated trial of the issues. In the first phase, the court found the counties liable to the Oneidas for wrongful possession of their lands. 434 F.Supp. 527 (1977). In the second phase, it awarded the Oneidas damages in the amount of $16,694, plus interest, representing the fair rental value of the land in question for the 2-year period specified in the complaint. Finally, the District Court held that the State of New York, a third-party defendant brought into the case by the counties, must indemnify the counties for the damages owed to the Oneidas. The Court of Appeals affirmed the trial court's rulings with respect to liability and indemnification. 719 F.2d 525 (1983). It remanded, however, for further proceedings on the amount of damages. Id., at 542. The counties and the State petitioned for review of these rulings. Recognizing the importance of the Court of Appeals' decision not only for the Oneidas, but potentially for many eastern Indian land claims, we granted certiorari, 465 U.S. 1099 (1984), to determine whether an Indian tribe may have a live cause of action for a violation of its possessory rights that occurred 175 years ago. We hold that the Court of Appeals correctly so ruled.

II

The respondents in these cases are the direct descendants of members of the Oneida Indian Nation, one of the six nations of the Iroquois, the most powerful Indian Tribe in the Northeast at the time of the American Revolution. See B. Graymont, The Iroquois in the American Revolution (1972) (hereinafter Graymont). From time immemorial to shortly after the Revolution, the Oneidas inhabited what is now central New York State. Their aboriginal land was approximately six million acres, extending from the Pennsylvania border to the St. Lawrence River, from the shores of Lake Ontario to the western foothills of the Adirondack Mountains. See 434 F. Supp., at 533.

Although most of the Iroquois sided with the British, the Oneidas actively supported the colonists in the Revolution. Ibid.; see also Graymont, supra. This assistance prevented the Iroquois from asserting a united effort against the colonists, and thus the Oneidas' support was of considerable aid. After the War, the United States recognized the importance of the Oneidas' role, and in the Treaty of Fort Stanwix, 7 Stat. 15 (Oct. 22, 1784), the National Government promised that the Oneidas would be secure "in the possession of the lands on which they are settled." Within a short period of time, the United States twice reaffirmed this promise, in the Treaties of Fort Harmar, 7 Stat. 33 (Jan. 9, 1789), and of Canandaigua, 7 Stat. 44 (Nov. 11, 1794).1

During this period, the State of New York came under increasingly heavy pressure to open the Oneidas' land for settlement. Consequently, in 1788, the State entered into a "treaty" with the Indians, in which it purchased the vast majority of the Oneidas' land. The Oneidas retained a reservation of about 300,000 acres, an area that, the parties stipulated below, included the land involved in this suit.

In 1790, at the urging of President Washington and Secretary of War Knox, Congress passed the first Indian Trade and Intercourse Act, ch. 33, 1 Stat. 137. See 4 American State Papers, Indian Affairs, Vol. 1, p. 53 (1832); F. Prucha, American Indian Policy in the Formative Years 43-44 (1962). The Act prohibited the conveyance of Indian land except where such conveyances were entered pursuant to the treaty power of the United States.2 In 1793, Congress passed a stronger, more detailed version of the Act, providing that "no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution . . . [and] in the presence, and with the approbation of the commissioner or commissioners of the United States" appointed to supervise such transactions. 1 Stat. 330, § 8. Unlike the 1790 version, the new statute included criminal penalties for violation of its terms. Ibid.

Despite Congress' clear policy that no person or entity should purchase Indian land without the acquiescence of the Federal Government, in 1795 the State of New York began negotiations to buy the remainder of the Oneidas' land. When this fact came to the attention of Secretary of War Pickering, he warned Governor Clinton, and later Governor Jay, that New York was required by the Nonintercourse Act to request the appointment of federal commissioners to supervise any land transaction with the Oneidas. See 434 F. Supp., at 534-535. The State ignored these warnings, and in the summer of 1795 entered into an agreement with the Oneidas whereby they conveyed virtually all of their remaining land to the State for annual cash payments. Ibid. It is this transaction that is the basis of the Oneidas' complaint in this case.

The District Court found that the 1795 conveyance did not comply with the requirements of the Nonintercourse Act. Id., at 538-541. In particular, the court stated that "[t]he only finding permitted by the record . . . is that no United States Commissioner or other official of the federal government was present at the . . . transaction." Id., at 535. The petitioners did not dispute this finding on appeal. Rather, they argued that the Oneidas did not have a federal common-law cause of action for this violation. Even if such an action once existed, they contended that the Nonintercourse Act pre-empted it, and that the Oneidas could not maintain a private cause of action for violations of the Act. Additionally, they maintained that any such cause of action was time-barred or nonjusticiable, that any cause of action under the 1793 Act had abated, and that the United States had ratified the conveyance. The Court of Appeals, with one judge dissenting, rejected these arguments. Petitioners renew these claims here; we also reject them and affirm the court's finding of liability.

III

At the outset, we are faced with petitioner counties' contention that the Oneidas have no right of action for the violation of the 1793 Act. Both the District Court and the Court of Appeals rejected this claim, finding that the Oneidas had the right to sue on two theories: first, a common-law right of action for unlawful possession; and second, an implied statutory cause of action under the Nonintercourse Act of 1793. We need not reach the latter question as we think the Indians' common-law right to sue is firmly established.

A

Federal Common Law

By the time of the Revolutionary War, several well-defined principles had been established governing the nature of a tribe's interest in its property and how those interests could be conveyed. It was accepted that Indian nations held "aboriginal title" to lands they had inhabited from time immemorial. See Cohen, Original Indian Title, 32 Minn. L. Rev. 28 (1947). The "doctrine of discovery" provided, however, that discovering nations held fee title to these lands, subject to the Indians' right of occupancy and use. As a consequence, no one could purchase Indian land or otherwise terminate aboriginal title without the consent of the sovereign.3 Oneida I, 414 U. S., at 667. See Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L. Rev. 17, 19-49 (1979).

With the adoption of the Constitution, Indian relations became the exclusive province of federal law. Oneida I, supra, at 670 (citing Worcester v. Georgia, 6 Pet. 515, 561 (1832)).4 From the first Indian claims presented, this Court recognized the aboriginal rights of the Indians to their lands. The Court spoke of the "unquestioned right" of the Indians to the exclusive possession of their lands, Cherokee Nation v. Georgia, 5 Pet. 1, 17 (1831), and stated that the Indians' right of occupancy is "as sacred as the fee simple of the whites." Mitchel v. United States, 9 Pet. 711, 746 (1835). This principle has been reaffirmed consistently. See also Fletcher v. Peck, 6 Cranch 87, 142-143 (1810); Johnson v. McIntosh, 8 Wheat. 543 (1823); Clark v. Smith, 13 Pet. 195, 201 (1839); Lattimer v. Poteet, 14 Pet. 4 (1840); Chouteau v. Molony, 16 How. 203 (1854); Holden v. Joy, 17 Wall. 211 (1872). Thus, as we concluded in Oneida I, "the possessory right claimed [by the Oneidas] is a federal right to the lands at issue in this case." 414 U. S., at 671 (emphasis in original).

Numerous decisions of this Court prior to Oneida I recognized at least implicitly that Indians have a federal commonlaw right to sue to enforce their aboriginal land rights.5 In Johnson v. McIntosh, supra, the Court declared invalid two private purchases of Indian land that occurred in 1773 and 1775 without the Crown's consent. Subsequently in Marsh v. Brooks, 8 How. 223, 232 (1850), it was held: "That an action of ejectment could be maintained on an Indian right to occupancy and use, is not open to question. This is the result of the decision in Johnson v. McIntosh." More recently, the Court held that Indians have a common-law right of action for an accounting of "all rents, issues and profits" against trespassers on their land. United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941).6 Finally, the Court's opinion in Oneida I implicitly assumed that the Oneidas could bring a common-law action to vindicate their aboriginal rights. Citing United States v. Santa Fe Pacific R. Co., supra, at 347, we noted that the Indians' right of occupancy need not be based on treaty, statute, or other formal Government action. 414 U. S., at 668-669. We stated that "absent federal statutory guidance, the governing rule of decision would be fashioned by the federal court in the mode of the common law." Id., at 674 (citing United States v. Forness, 125 F.2d 928 (CA2), cert. denied sub nom. City of Salamanca v. United States, 316 U.S. 694 (1942)).

In keeping with these well-established principles, we hold that the Oneidas can maintain this action for violation of their possessory rights based on federal common law.

B

Pre-emption

Petitioners argue that the Nonintercourse Acts preempted whatever right of action the Oneidas may have had at common law, relying on our decisions in Milwaukee v. Illinois, 451 U.S. 304 (1981) (Milwaukee II), and Middlesex County Sewerage Authority v. National Sea Clammers Assn., 453 U.S. 1 (1981). We find this view to be unpersuasive. In determining whether a federal statute pre-empts common-law causes of action, the relevant inquiry is whether the statute "[speaks] directly to [the] question" otherwise answered by federal common law. Milwaukee II, supra, at 315 (emphasis added). As we stated in Milwaukee II, federal common law is used as a "necessary expedient" when Congress has not "spoken to a particular issue." 451 U. S., at 313-314 (emphasis added). The Nonintercourse Act of 1793 does not speak directly to the question of remedies for unlawful conveyances of Indian land. A comparison of the 1793 Act and the statute at issue in Milwaukee II is instructive.

Milwaukee II raised the question whether a common-law action for the abatement of a nuisance caused by the pollution of interstate waterways survived the passage of the 1972 amendments to the Federal Water Pollution Control Act, Pub. L. 92-500, 86 Stat. 816 (FWPCA).7 FWPCA established an elaborate system for dealing with the problem of interstate water pollution, providing for enforcement of its terms by agency action and citizens suits. See Milwaukee II, supra, at 325-327. It also made available civil penalties for violations of the Act. 33 U. S. C. §§ 1319(d), 1365. The legislative history indicated that Congress intended FWPCA to provide a comprehensive solution to the problem of interstate water pollution, as we noted in Milwaukee II, supra, at 317-319.

In contrast, the Nonintercourse Act of 1793 did not establish a comprehensive remedial plan for dealing with violations of Indian property rights. There is no indication in the legislative history that Congress intended to pre-empt commonlaw remedies.8 Only two sections of the Act, §§ 5 and 8, involve Indian lands at all.9 The relevant clause of § 8 provides simply that "no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution. . . ." 1 Stat. 330. It contains no remedial provision.10 Section 5 subjects individuals who settle on Indian lands to a fine and imprisonment, and gives the President discretionary authority to remove illegal settlers from the Indians' land.11 Thus, the Nonintercourse Act does not address directly the problem of restoring unlawfully conveyed land to the Indians, in contrast to the specific remedial provisions contained in FWPCA. See Milwaukee II, 451 U. S., at 313-315.

Significantly, Congress' action subsequent to the enactment of the 1793 statute and later versions of the Nonintercourse Act demonstrate that the Acts did not pre-empt common-law remedies. In 1822 Congress amended the 1802 version of the Act to provide that "in all trials about the right of property, in which Indians shall be party on one side and white persons on the other, the burden of proof shall rest upon the white person, in every case in which the Indian shall make out a presumption of title in himself from the fact of previous possession and ownership." § 4, 3 Stat. 683; see 25 U. S. C. § 194. Thus, Congress apparently contemplated suits by Indians asserting their property rights.

Decisions of this Court also contradict petitioners' argument for pre-emption. Most recently, in Wilson v. Omaha Indian Tribe, 442 U.S. 653 (1979), the Omaha Indian Tribe sued to quiet title on land that had surfaced over the years as the Missouri River changed its course. The Omahas based their claim for possession on aboriginal title. The Court construed the 1822 amendment to apply to suits brought by Indian tribes as well as individual Indians. Citing the very sections of the Act that petitioners contend pre-empt a common-law action by the Indians, the Court interpreted the amendment to be part of the overall "design" of the Nonintercourse Acts "to protect the rights of Indians to their properties." Id., at 664. See also Fellows v. Blacksmith, 19 How. 366 (1857).12

We recognized in Oneida I that the Nonintercourse Acts simply "put in statutory form what was or came to be the accepted rule — that the extinguishment of Indian title required the consent of the United States." 414 U. S., at 678. Nothing in the statutory formulation of this rule suggests that the Indians' right to pursue common-law remedies was thereby pre-empted. Accordingly, we hold that the Oneidas' right of action under federal common law was not pre-empted by the passage of the Nonintercourse Acts.

IV

Having determined that the Oneidas have a cause of action under federal common law, we address the question whether there are defenses available to the counties. We conclude that none has merit.

A

Statute of Limitations

There is no federal statute of limitations governing federal common-law actions by Indians to enforce property rights. In the absence of a controlling federal limitations period, the general rule is that a state limitations period for an analogous cause of action is borrowed and applied to the federal claim, provided that the application of the state statute would not be inconsistent with underlying federal policies.13 See Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465 (1975). See also Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977). We think the borrowing of a state limitations period in these cases would be inconsistent with federal policy. Indeed, on a number of occasions Congress has made this clear with respect to Indian land claims.

In adopting the statute that gave jurisdiction over civil actions involving Indians to the New York courts, Congress included this proviso: "[N]othing herein contained shall be construed as conferring jurisdiction on the courts of the State of New York or making applicable the laws of the State of New York in civil actions involving Indian lands or claims with respect thereto which relate to transactions or events transpiring prior to September 13, 1952." 25 U. S. C. § 233. This proviso was added specifically to ensure that the New York statute of limitations would not apply to pre-1952 land claims.14 In Oneida I, we relied on the legislative history of 25 U. S. C. § 233 in concluding that Indian land claims were exclusively a matter of federal law. 414 U. S., at 680-682. This history also reflects congressional policy against the application of state statutes of limitations in the context of Indian land claims.

Congress recently reaffirmed this policy in addressing the question of the appropriate statute of limitations for certain claims brought by the United States on behalf of Indians. Originally enacted in 1966, this statute provided a special limitations period of 6 years and 90 days for contract and tort suits for damages brought by the United States on behalf of Indians. 28 U. S. C. §§ 2415(a), (b). The statute stipulated that claims that accrued prior to its date of enactment, July 18, 1966, were deemed to have accrued on that date. § 2415(g). Section 2415(c) excluded from the limitations period all actions "to establish the title to, or right of possession of, real or personal property."

In 1972 and again in 1977, 1980, and 1982, as the statute of limitations was about to expire for pre-1966 claims, Congress extended the time within which the United States could bring suits on behalf of the Indians. The legislative history of the 1972, 1977, and 1980 amendments demonstrates that Congress did not intend § 2415 to apply to suits brought by the Indians themselves, and that it assumed that the Indians' right to sue was not otherwise subject to any statute of limitations. Both proponents and opponents of the amendments shared these views. See 123 Cong. Rec. 22167-22168 (1977) (remarks of Rep. Dicks, arguing that extension is unnecessary because the Indians can bring suit even if the statute of limitations expires for the United States); id., at 22166 and 22499 (remarks of Rep. Cohen, arguing that the basic problem with the bill is its failure to limit suits brought by Indians); 126 Cong. Rec. 3289 (1980) (remarks of Sen. Melcher, reiterating with respect to the 1980 extension Rep. Dicks' argument against the 1977 extension); id., at 3290 (remarks of Sen. Cohen, same); Statute of Limitations Extension: Hearing before the Senate Select Committee on Indian Affairs, 96th Cong., 1st Sess., 312-314 (1979); Statute of Limitations Extension for Indian Claims: Hearings on S. 1377 before the Senate Select Committee on Indian Affairs, 95th Cong., 1st Sess., 76-77 (1977); Time Extension for Commencing Actions on Behalf of Indians: Hearing on S. 3377 and H. R. 13825 before the Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 92d Cong., 2d Sess., 23 (1972).

With the enactment of the 1982 amendments, Congress for the first time imposed a statute of limitations on certain tort and contract claims for damages brought by individual Indians and Indian tribes. These amendments, enacted as the Indian Claims Limitation Act of 1982, Pub. L. 97-394, 96 Stat. 1976, note following 28 U. S. C. § 2415, established a system for the final resolution of pre-1966 claims cognizable under §§ 2415(a) and (b). The Act directed the Secretary of the Interior to compile and publish in the Federal Register a list of all Indian claims to which the statute of limitations provided in 28 U. S. C. § 2415 applied. The Act also directed that the Secretary notify those Indians who may have an interest in any such claims. The Indians were then given an opportunity to submit additional claims; these were to be compiled and published on a second list. Actions for claims subject to the limitations periods of § 2415 that appeared on neither list were barred unless commenced within 60 days of the publication of the second list. If at any time the Secretary decides not to pursue a claim on one of the lists, "any right of action shall be barred unless the complaint is filed within one year after the date of publication [of the notice of the Secretary's decision] in the Federal Register." Pub. L. 97-394, 96 Stat. 1978, § 5(c) (emphasis added). Thus, § 5(c) implicitly imposed a 1-year statute of limitations within which the Indians must bring contract and tort claims that are covered by §§ 2415(a) and (b) and not listed by the Secretary. So long as a listed claim is neither acted upon nor formally rejected by the Secretary, it remains live.15

The legislative history of the successive amendments to § 2415 is replete with evidence of Congress' concern that the United States had failed to live up to its responsibilities as trustee for the Indians, and that the Department of the Interior had not acted with appropriate dispatch in meeting the deadlines provided by § 2415. E. g., Authorizing Indian Tribes to Bring Certain Actions on Behalf of their Members with Respect to Certain Legal Claims, and for Other Purposes, H. R. Rep. No. 97-954, p. 5 (1982). By providing a 1-year limitations period for claims that the Secretary decides not to pursue, Congress intended to give the Indians one last opportunity to file suits covered by § 2415(a) and (b) on their own behalf. Thus, we think the statutory framework adopted in 1982 presumes the existence of an Indian right of action not otherwise subject to any statute of limitations. It would be a violation of Congress' will were we to hold that a state statute of limitations period should be borrowed in these circumstances.

B

Laches

The dissent argues that we should apply the equitable doctrine of laches to hold that the Oneidas' claim is barred. Although it is far from clear that this defense is available in suits such as this one,16 we do not reach this issue today. While petitioners argued at trial that the Oneidas were guilty of laches, the District Court ruled against them and they did not reassert this defense on appeal. As a result, the Court of Appeals did not rule on this claim, and we likewise decline to do so.

C

Abatement

Petitioners argue that any cause of action for violation of the Nonintercourse Act of 1793 abated when the statute expired. They note that Congress specifically provided that the 1793 Act would be in force "for the term of two years, and from thence to the end of the then next session of Congress, and no longer." 1 Stat. 332, § 15. They contend that the 1796 version of the Nonintercourse Act repealed the 1793 version and enacted an entirely new statute, and that under the common-law abatement doctrine in effect at the time, any cause of action for violation of the statute finally abated on the expiration of the statute.17 We disagree.

The pertinent provision of the 1793 Act, § 8, like its predecessor, § 4 of the 1790 Act, 1 Stat. 138, merely codified the principle that a sovereign act was required to extinguish aboriginal title and thus that a conveyance without the sovereign's consent was void ab initio. See supra, at 233-234, and n. 3. All of the subsequent versions of the Nonintercourse Act, including that now in force, 25 U. S. C. § 177, contain substantially the same restraint on the alienation of Indian lands. In these circumstances, the precedents of this Court compel the conclusion that the Oneidas' cause of action has not abated.18

D

Ratification

We are similarly unpersuaded by petitioners' contention that the United States has ratified the unlawful 1795 conveyances. Petitioners base this argument on federally approved treaties in 1798 and 1802 in which the Oneidas ceded additional land to the State of New York.19 There is a question whether the 1802 treaty ever became effective.20 Assuming it did, neither the 1798 nor the 1802 treaty qualifies as federal ratification of the 1795 conveyance.

The canons of construction applicable in Indian law are rooted in the unique trust relationship between the United States and the Indians. Thus, it is well established that treaties should be construed liberally in favor of the Indians, Choctaw Nation v. United States, 318 U.S. 423, 431-432 (1943); Choate v. Trapp, 224 U.S. 665, 675 (1912), with ambiguous provisions interpreted to their benefit, McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 174 (1973); Carpenter v. Shaw, 280 U.S. 363, 367 (1930); Winters v. United States, 207 U.S. 564, 576-577 (1908). "Absent explicit statutory language," Washington v. Washington State Commercial Passenger Fishing Vessel Assn., 443 U.S. 658, 690 (1979), this Court accordingly has refused to find that Congress has abrogated Indian treaty rights. Menominee Tribe v. United States, 391 U.S. 404 (1968). See generally F. Cohen, Handbook of Federal Indian Law 221-225 (1982 ed.) (hereinafter F. Cohen).

The Court has applied similar canons of construction in nontreaty matters. Most importantly, the Court has held that congressional intent to extinguish Indian title must be "plain and unambiguous," United States v. Santa Fe Pacific R. Co., 314 U. S., at 346, and will not be "lightly implied," id., at 354. Relying on the strong policy of the United States "from the beginning to respect the Indian right of occupancy," id., at 345 (citing Cramer v. United States, 261 U.S. 219, 227 (1923)), the Court concluded that it "[c]ertainly" would require "plain and unambiguous action to deprive the [Indians] of the benefits of that policy," 314 U. S., at 346. See F. Cohen.

In view of these principles, the treaties relied upon by petitioners are not sufficient to show that the United States ratified New York's unlawful purchase of the Oneidas' land. The language cited by petitioners, a reference in the 1798 treaty to "the last purchase" and one in the 1802 treaty to "land heretofore ceded," far from demonstrates a plain and unambiguous intent to extinguish Indian title. See n. 19, supra. There is no indication that either the Senate or the President intended by these references to ratify the 1795 conveyance. See 1 Journal of the Executive Proceedings of the Senate 273, 312, 408, 428 (1828).21

E

Nonjusticiability

The claim also is made that the issue presented by the Oneidas' action is a nonjusticiable political question. The counties contend first that Art. 1, § 8, cl. 3, of the Constitution explicitly commits responsibility for Indian affairs to Congress.22 Moreover, they argue that Congress has given exclusive civil remedial authority to the Executive for cases such as this one, citing the Nonintercourse Acts and the 1794 Treaty of Canandaigua.23 Thus, they say this case falls within the political question doctrine because of "a textually demonstrable constitutional commitment of the issue to a coordinate political department." Baker v. Carr, 369 U.S. 186, 217 (1962). Additionally, the counties argue that the question is nonjusticiable because there is "an unusual need for unquestioning adherence to a political decision already made." Ibid. None of these claims is meritorious.

This Court has held specifically that Congress' plenary power in Indian affairs under Art. 1, § 8, cl. 3, does not mean that litigation involving such matters necessarily entails nonjusticiable political questions. Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 83-84 (1977). Accord, United States v. Sioux Nation, 448 U.S. 371, 413 (1980). See also Baker v. Carr, supra, at 215-217. If Congress' constitutional authority over Indian affairs does not render the Oneidas' claim nonjusticiable, a fortiori, Congress' delegation of authority to the President does not do so either.24

We are also unpersuaded that petitioners have shown "an unusual need for unquestioning adherence to a political decision already made." Baker v. Carr, supra, at 217. The basis for their argument is the fact that in 1968, the Commissioner of Indian Affairs declined to bring an action on behalf of the Oneidas with respect to the claims asserted in these cases. The counties cite no cases in which analogous decisions provided the basis for nonjusticiability. Cf. INS v. Chadha, 462 U.S. 919 (1983); United States v. Nixon, 418 U.S. 683 (1974); Powell v. McCormack, 395 U.S. 486 (1969). Our cases suggest that such "unusual need" arises most of the time, if not always, in the area of foreign affairs. Baker v. Carr, supra, at 211-213; see also Gilligan v. Morgan, 413 U.S. 1 (1973). Nor do the counties offer convincing reasons for thinking that there is a need for "unquestioning adherence" to the Commissioner's decision. Indeed, the fact that the Secretary of the Interior has listed the Oneidas' claims under the § 2415 procedure suggests that the Commissioner's 1968 decision was not a decision on the merits of the Oneidas' claims. See n. 15, supra.25

We conclude, therefore, that the Oneidas' claim is not barred by the political question doctrine.

V

Finally, we face the question whether the Court of Appeals correctly held that the federal courts could exercise ancillary jurisdiction over the counties' cross-claim against the State of New York for indemnification. The counties assert that this claim arises under both state and federal law. The Court of Appeals did not decide whether it was based on state or federal law. See 719 F. 2d, at 542-544. It held, however, that the 1790 and 1793 Nonintercourse Acts "placed New York on notice that Congress had exercised its power to regulate commerce with the Indians. Thus, anything New York thereafter did with respect to Indian lands carried with it a waiver of the State's eleventh amendment immunity." Id., at 543 (citing Edelman v. Jordan, 415 U.S. 651, 672 (1974), and Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 283-284 (1973)). In essence, the Court of Appeals held that by violating a federal statute, the State consented to suit in federal court by any party on any claim, state or federal, growing out of the same nucleus of operative facts as the statutory violation. This proposition has no basis in law.

The counties' cross-claim for indemnification raises a classic example of ancillary jurisdiction. See Owen Equipment & Erection Co. v. Kroger, 437 U.S. 365 (1978). The Eleventh Amendment forecloses, however, the application of normal principles of ancillary and pendent jurisdiction where claims are pressed against the State. Pennhurst State School and Hospital v. Halderman, 465 U.S. 89 (1984). As we held in Pennhurst: "[N]either pendent jurisdiction nor any other basis of jurisdiction may override the Eleventh Amendment. A federal court must examine each claim in a case to see if the court's jurisdiction over that claim is barred by the Eleventh Amendment." Id., at 121. The indemnification claim here, whether cast as a question of New York law or federal common law, is a claim against the State for retroactive monetary relief. In the absence of the State's consent, id., at 99 (citing Clark v. Barnard, 108 U.S. 436, 447 (1883)), the suit is barred by the Eleventh Amendment. Thus, as the Court of Appeals recognized, whether the State has consented to waive its constitutional immunity is the critical factor in whether the federal courts properly exercised ancillary jurisdiction over the counties' claim for indemnification. Pennhurst, supra.

The only ground the Court of Appeals and the counties offer for believing that the State has consented to suit in federal court on this claim is the fact that it violated the 1793 Nonintercourse Act by purchasing the Oneidas' land. The counties assert that because the Constitution specifically authorizes Congress "[t]o regulate Commerce . . . with the Indian Tribes," the States necessarily consented to suit in federal court with respect to enactments under this Clause. See County of Monroe v. Florida, 678 F.2d 1124 (CA2 1982) (making an analogous argument with respect to Congress' extradition power), cert. denied, 459 U.S. 1104 (1983); Mills Music, Inc. v. Arizona, 591 F.2d 1278, 1285 (CA9 1979) (making such an argument with respect to Congress' power over copyright and patents). Thus, they contend, Congress can abrogate the States' Eleventh Amendment immunity and has done so by enacting the Nonintercourse Acts. By violating the 1793 Act, the State thus waived its immunity to suit in federal court with respect to such violations.

Assuming, without deciding, that this reasoning is correct, it does not address the Eleventh Amendment problem here, for the counties' indemnification claim against the State does not arise under the 1793 Act. The counties cite no authority for their contrary view. They urge simply that the State would be unjustly enriched if the counties were forced to pay the Oneidas without indemnity from the State, and thus that the Court should "fashion a remedy" for the counties under the 1793 Act. This is an argument on the merits; it is not an argument that the indemnification claim arises under the Act. As we said in Pennhurst, "[a] State's constitutional interest in immunity encompasses not merely whether it may be sued, but where it may be sued." 465 U. S., at 99 (emphasis in original). The Eleventh Amendment bar does not vary with the merits of the claims pressed against the State.

We conclude, therefore, that the counties' cross-claim for indemnity by the State raises a question of state law. We are referred to no evidence that the State has waived its constitutional immunity to suit in federal court on this question.26 Thus, under Pennhurst, we hold that the federal courts erred in exercising ancillary jurisdiction over this claim.

VI

The decisions of this Court emphasize "Congress' unique obligation toward the Indians." Morton v. Mancari, 417 U.S. 535, 555 (1974). The Government, in an amicus curiae brief, urged the Court to affirm the Court of Appeals. Brief for United States as Amicus Curiae 28. The Government recognized, as we do, the potential consequences of affirmance. It was observed, however, that "Congress has enacted legislation to extinguish Indian title and claims related thereto in other eastern States, . . . and it could be expected to do the same in New York should the occasion arise." Id., at 29-30. See Rhode Island Indian Claims Settlement Act, 25 U. S. C. § 1701 et seq.; Maine Indian Claims Settlement Act, 25 U. S. C. § 1721 et seq. We agree that this litigation makes abundantly clear the necessity for congressional action.

One would have thought that claims dating back for more than a century and a half would have been barred long ago. As our opinion indicates, however, neither petitioners nor we have found any applicable statute of limitations or other relevant legal basis for holding that the Oneidas' claims are barred or otherwise have been satisfied. The judgment of the Court of Appeals is affirmed with respect to the finding of liability under federal common law,27 and reversed with respect to the exercise of ancillary jurisdiction over the counties' cross-claim for indemnification. The cases are remanded to the Court of Appeals for further proceedings consistent with our decision.

It is so ordered.

JUSTICE STEVENS concurs in the judgment with respect to No. 83-1240.

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and dissenting in part.

I join the Court's opinion except for Part V. I dissent from Part V because I adhere to my view that the Eleventh Amendment "bars federal court suits against States only by citizens of other States," Yeomans v. Kentucky, 423 U.S. 983, 984 (1975) (BRENNAN, J., dissenting). Thus, I would hold that the State of New York is not entitled to invoke the protections of that Amendment in this federal-court suit by counties of New York. See Employees v. Missouri Dept. of Public Health and Welfare, 411 U.S. 279, 298 (1973) (BRENNAN, J., dissenting); Edelman v. Jordan, 415 U.S. 651, 687 (1974) (BRENNAN, J., dissenting). In my view, Hans v. Louisiana, 134 U.S. 1 (1890), erects a limited constitutional barrier prohibiting suits against States by citizens of another State; the decision, however, "accords to nonconsenting States only a nonconstitutional immunity from suit by its own citizens." Employees v. Missouri Dept. of Public Health and Welfare, supra, at 313 (BRENNAN, J., dissenting) (emphasis added). For scholarly discussion supporting this view, see Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 Harv. L. Rev. 61, 68 (1984); Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Reinterpretation, 83 Colum. L. Rev. 1889, 1893-1894 (1983); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. Pa. L. Rev. 515, 538-540, and n. 88 (1978).

JUSTICE STEVENS, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and JUSTICE REHNQUIST join, dissenting in No. 83-1065.

In 1790, the President of the United States notified Cornplanter, the Chief of the Senecas, that federal law would securely protect Seneca lands from acquisition by any State or person:

The elders of the Oneida Indian Nation received comparable notice of their capacity to maintain the federal claim that is at issue in this litigation.2 They made no attempt to assert the claim, and their successors in interest waited 175 years before bringing suit to avoid a 1795 conveyance that the Tribe freely made, for a valuable consideration. The absence of any evidence of deception, concealment, or interference with the Tribe's right to assert a claim, together with the societal interests that always underlie statutes of repose — particularly when title to real property is at stake — convince me that this claim is barred by the extraordinary passage of time. It is worthy of emphasis that this claim arose when George Washington was the President of the United States.

The Court refuses to apply any time bar to this claim, believing that to do so would be inconsistent with federal Indian policy. This Court, however, has always applied the equitable doctrine of laches when Indians or others have sought, in equity, to set aside conveyances made under a statutory or common-law incapacity to convey. Although this action is brought at law, in ejectment, there are sound reasons for recognizing that it is barred by similar principles.

In reaching a contrary conclusion, the Court relies on the legislative histories of a series of recent enactments. In my view, however, the Oneida were barred from avoiding their 1795 conveyance long before 1952, when Congress enacted the first statute that the Court relies on today. Neither that statute, nor any subsequent federal legislation, revived the Oneida's dormant claim.

I

Today's decision is an unprecedented departure from the wisdom of the common law:

Of course, as the Court notes, there "is no federal statute of limitations governing federal common-law actions by Indians to enforce property rights." Ante, at 240. However, "where Congress has not spoken but left matters for judicial determination within the general framework of familiar legal principles," Holmberg v. Armbrecht, 327 U.S. 392, 395 (1946), the settled practice has been to adopt the state law of limitations as federal law.

The Court has recognized that "State legislatures do not devise their limitations periods with national interests in mind, and it is the duty of the federal courts to assure that the importation of state law will not frustrate or interfere with the implementation of national policies." Occidental Life Ins. Co. v. EEOC, 432 U.S. 355, 367 (1977). The Court, for example, has refused to apply state laws of limitations when a more analogous federal statute of limitations better reflects the appropriate balance between the enforcement of federal substantive policies and the historic principles of repose,3 or when a unique federal interest in the subject matter or a paramount interest in national uniformity require the fashioning of a federal time bar in order to avoid serious conflict with federal policies or functions.4 In applying these principles, however, the Court has always presumed that some principle of limitation applies to federal causes of action.5 Thus, in Occidental Life Ins. Co., the Court concluded that Congress had intended no rigid time limit for EEOC enforcement actions, but the Court also recognized that federal courts have adequate power to bar an action if the defendant was "significantly handicapped in making his defense because of an inordinate EEOC delay." Id., at 373.

Before 1966 there was no federal statute of limitations that even arguably could have supplanted a state limitation. Even the longest possibly applicable state statute of limitations would surely have barred this cause of action — which arose in 1795 — many years before 1966.6 Moreover, "[a] state statute cannot be considered `inconsistent' with federal law merely because the statute causes the plaintiff to lose the litigation." Robertson v. Wegmann, 436 U.S. 584, 593 (1978). Nor is the rejection of a generally applicable state law inappropriate merely because one party is an Indian tribe and the subject matter of the litigation involves tribal property. Wilson v. Omaha Indian Tribe, 442 U.S. 653, 673-674 (1979). Thus, a routine application of our practice in dealing with limitations questions would lead to the conclusion that this claim is barred by the lapse of time.

Nevertheless, there are unique considerations in cases involving Indian claims that warrant a departure from the ordinary practice. Indians have long occupied a protected status in our law, and in the 19th century they were often characterized as wards of the State.7 At common law, conveyances of persons subject to similar disabilities were void. In practice, however, the common-law courts modified the wooden rules ordinarily applied to real property claims in actions at law in order to protect the ward, as far as possible, from manipulation, while at the same time avoiding the obvious inequity involved in the setting aside, at a distant date, of conveyances that had been freely made, for valuable consideration.

For example, the statute of limitations applicable to actions seeking to gain recovery of the real estate conveyed under such disabilities did not begin to run against a ward until his unique disabilities had been overcome.8 Thus, to be faithful to these common-law principles, the application of a state statute of limitations in the context of ancient Indian claims would require flexible consideration of the development of the particular tribe's capacity to govern its own affairs.

Moreover, the common law developed prescription doctrines that terminated the vendor's power to avoid a void conveyance in an action in ejectment. These doctrines could deny the ward, or those claiming under him, a cause of action in ejectment even before the running of the applicable statute of limitations. Although these doctrines were often based on theories of implied ratification, they were most often enforced in circumstances indicating undue or prejudicial delay.9

I believe that the equitable doctrine of laches,10 with its focus on legitimate reliance and inexcusable delay, best reflects the limitation principles that would have governed this ancient claim at common law — without requiring a historian's inquiry into the archaic limitation doctrines that would have governed the claims at any specific time in the preceding two centuries. Of course, the application of a traditional equitable defense in an action at law is something of a novelty. But this novel development in litigation involving Indian claims arose in order to benefit a special class of litigants, and it remains true that an equitable defense to the instant claim is less harsh than a straightforward application of the limitations rule dictated by our usual practice. At least equal to the maxim that equity follows the law is the truth that common-law real property principles were often tempered by equitable considerations — as the rules limiting a ward's power to avoid an unlawful conveyance demonstrate.11

As the Court recognizes, the instant action arises under the federal common law, not under any congressional enactment, and in this context the Court would not risk frustrating the will of the Legislature12 by applying this familiar doctrine of equity. The merger of law and equity in one federal court13 is, of course, primarily procedural. Considering the hybrid nature of these claims and the evolving character of the common law, however, I believe that the application of laches as a limitation principle governing ancient Indian claims will promote uniformity of result in law and at equity, maintain the proper measure of flexibility to protect the legitimate interests of the tribes, while at the same time honoring the historic wisdom in the value of repose.

II

Three decisions of this Court illustrate the application of the doctrine of laches to actions seeking to set aside conveyances made in violation of federal law. In Ewert v. Bluejacket, 259 U.S. 129 (1922), the Court stated that "the equitable doctrine of laches . . . cannot properly have application to give vitality to a void deed and to bar the rights of Indian wards in lands subject to statutory restrictions." Id., at 138. A close examination of the Ewert case, however, indicates that the Court applied the doctrine of laches, but rejected relief for the defendant in the circumstances of the case.

In 1909, Ewert, a federal Indian agent, obtained a conveyance of allotted lands from the heirs of an Indian in violation of a statutory prohibition against federal officers engaging in trade with Indians. In 1916, the heirs brought an action, in equity, seeking to set aside the conveyance. The Court of Appeals held that the heirs had the burden of disproving laches because they had brought their action outside the applicable state statute of limitations, and concluded that they had not satisfied this burden. "The adult plaintiffs were free to make conveyance of this land, even though they were Indians, and [since] their tribal relations had been severed, [they] were chargeable with the same diligence as white people in discovering and pursuing their legal remedies. [Felix v. Patrick, 145 U.S. 317 (1892)]; [Schrimpscher v. Stockton, 183 U.S. 290 (1902)]." Bluejacket v. Ewert, 265 F. 823, 829 (CA8 1920).

On appeal, this Court held that the plaintiffs' action was not barred by the doctrine of laches, noting that "[Ewert] still holds the legal title to the land." 259 U. S., at 138. The Court principally relied on the doctrine that "an [unlawful] act . . . is void and confers no right upon the wrongdoer." Waskey v. Hammer, 223 U.S. 85, 94 (1912) (emphasis added). On the facts of Ewert, the Court found that the plaintiffs' burden of disproving laches was easily met, but the Court might well have reached a different conclusion in Ewert if the conveyance had not been so recent, if the defendant had not been as blameworthy, or if the character of the property had changed dramatically in the interim.

My interpretation of Ewert is illustrated by this Court's prior decision in Felix v. Patrick, 145 U.S. 317 (1892). In that case, the Court applied the doctrine of laches to bar an action by the heirs of an Indian to establish a constructive trust over lands that had been conveyed by her in violation of a federal statutory restriction. The action to set aside the unlawful transfer was brought 28 years after the transaction, and in the intervening time, "[t]hat which was wild land thirty years ago is now intersected by streets, subdivided into blocks and lots, and largely occupied by persons who have bought upon the strength of Patrick's title, and have erected buildings of a permanent character upon their purchases." Id., at 334.

The Court recognized that the long passage of time, the change in the character of the property, the transfer of some of the property to third parties, the absence of any obvious inadequacy in the consideration received in the original transaction, and Patrick's lack of direct participation in the original transfer all supported a charge of laches against the plaintiffs. In addition, the Court noted that "[t]he decree prayed for in this case, if granted, would offer a distinct encouragement to the purchase of similar claims, which doubtless exist in abundance through the Western Territories,. . . and would result in the unsettlement of large numbers of titles upon which the owners have rested in assured security for nearly a generation." Id., at 335.

Nor is Felix the only application of these principles in a similar context. In Wetzel v. Minnesota Railway Transfer Co., 169 U.S. 237 (1898), the children of a deceased Mexican War veteran received a warrant for 160 acres of land under a federal statute that prohibited any alienation of the property without the approval of the proper state probate court. The children's guardian sold their share in the warrant without seeking the approval of the proper court. Forty-four years after the conveyance, the children brought an action, in equity, seeking to establish a constructive trust over the 160 acres — now located in a well-developed area of St. Paul, Minnesota. The Court held that the action was barred by laches relying on Felix v. Patrick, and noting that the property had been completely developed and had greatly increased in value. The Court also observed that title had passed to persons who were no doubt ignorant of the defect in title.

The Court also noted the relevance of the length of the delay:

Ewert, Felix, and Wetzel establish beyond doubt that it is quite consistent with federal policy to apply the doctrine of laches to limit a vendor's power to avoid a conveyance violating a federal restriction on alienation.

III

As in Felix and Wetzel, the land conveyed by the Oneida in 1795 has been converted from wilderness to cities, towns, villages, and farms. The 872 acres of land involved in the instant action include the principal transportation arteries in the region, and other vital public facilities owned by the Counties of Oneida and Madison.14 The counties and the private property owners affected by the litigation, without proven notice of the defect in title caused by the State of New York's failure to comply with the federal statute, have erected costly improvements on the property in reliance on the validity of their title. Even if the counties are considered for some purposes to be the alter ego of the State, it is surely a fiction to argue that they are in any way responsible for their predicament,15 or that their taxpayers, who will ultimately bear the burden of the judgment in this case, are in any way culpable for New York's violation of federal law in 1795.

As the Court holds, ante, at 233-236, there was no legal impediment to the maintenance of this cause of action at any time after 1795. Although the mere passage of time, without other inequity in the prosecution of the claim, does not support a finding of laches in the ordinary case, e. g., Holmberg v. Armbrecht, 327 U. S., at 396, in cases of gross laches the passage of a great length of time creates a nearly insurmountable burden on the plaintiffs to disprove the obvious defense of laches.16 As Justice Story noted for the Court in Prevost v. Gratz, 6 Wheat. 481, 504-505 (1821):

Given their burden of explaining nearly two centuries of delay in the prosecution of this claim, and considering the legitimate reliance interests of the counties and the other property owners whose title is derived from the 1795 conveyance, the Oneida have not adequately justified their delay.

Of course, the traditional rule was "that `the conduct of Indians is not to be measured by the same standard which we apply to the conduct of other people.' But their very analogy to persons under guardianship suggests a limitation to their pupilage, since the utmost term of disability of an infant is but 21 years, and it is very rare that the relations of guardian and ward under any circumstances, even those of lunacy, are maintained for a longer period than this." Felix v. Patrick, 145 U. S., at 330-331 (quoting The Kansas Indians, 5 Wall. 737, 758 (1867)). In this case, the testimony at trial indicates that the Oneida people have independently held land derived from tribal allotments at least since the Dawes Act of 1887,17 and probably earlier in the State of New York.18 They have received formal schooling at least since 1796 in New York, and have gradually become literate in the English language.19 They have developed a sophisticated system of tribal government,20 and at various times in the past 175 years, have petitioned the Government for the redress of grievances, or sent commissions to confer with their brethren.21

In all the years after the 1795 conveyance — until the years leading up to this litigation — the Oneida made few efforts to raise this specific grievance against the State of New York and the landowners holding under the State's title.22 Claims to lands in New York most often were only made in connection with generalized grievances concerning the Tribe's treatment at the hands of the United States Government.23 Although the Oneida plainly knew or should have known that they had conveyed their lands to the State of New York in violation of federal law, and that they might have some cause for redress, they inexplicably delayed filing a lawsuit on their claim until 175 years after the conveyance was made. Finally, "[t]here is no evidence that any of the plaintiffs or their predecessors ever refused or returned any of the payments received for the purported sale of land pursuant to the Treaty of 1795."24

The Oneida have not met their formidable burden of disproving unjustifiable delay to the prejudice of others. In my opinion their cause of action is barred by the doctrine of laches. The remedy for the ancient wrong established at trial should be provided by Congress, not by judges seeking to rewrite history at this late date.

IV

The Oneida argue that the legislative histories of a series of congressional enactments, beginning in 1952, persuasively establish that their claims have never been barred. This argument has serious flaws, not the least being that whatever Congress said in 1952 or 1966 is extremely weak authority for the status of the common law in 1795, or for a considerable period thereafter. Believing, as I do, that the Oneida's claim was barred by the doctrine of laches or by a related common-law doctrine25 long before 1952, it is quite clear that the statutes discussed by the Court did not revive it.

First, and most obviously, the principal statute relied on by the Court, by its very terms, only applies to claims brought by the United States on behalf of Indians or Indian tribes.26 This action, of course, is brought by an Indian Tribe on its own behalf.

Secondly, neither the statutes themselves,27 nor the legislative discussions that preceded their enactment,28 provide any indication of an intent to revive already barred claims.29 Quite the contrary, they merely indicate a congressional intent to preserve the status quo with respect to ancient claims that might already be barred, and to establish a procedure for making sure that the claims would not survive eternally.

Congress, for the most part, has been quite clear when it decides to revive causes of action that might be barred or to deny any time limitation for a private cause of action.30 When the will of Congress is as lacking in clarity as it is in this case, we should be wary of attributing to it the intention of reviving ancient claims that will upset long-settled expectations. In divining the intent of Congress concerning the applicable limitation on a cause of action, Chief Justice Marshall once noted that "it deserves some consideration," that in the absence of an applicable limitation, "those actions might, in many cases, be brought at any distance of time. This would be utterly repugnant to the genius of our laws." Adams v. Woods, 2 Cranch 336, 341 (1805). The Court today prefers to impute to Congress the intent of rewarding those whom "Abraham Lincoln once described with scorn [as sitting] in the basements of courthouses combing property records to upset established titles." Arizona v. California, 460 U.S. 605, 620 (1983). The more appropriate presumption in this case is that Congress intended to honor legitimate expectations in the ownership of real property and not to disturb them.

V

The Framers recognized that no one ought be condemned for his forefathers' misdeeds — even when the crime is a most grave offense against the Republic.31 The Court today ignores that principle in fashioning a common-law remedy for the Oneida Nation that allows the Tribe to avoid its 1795 conveyance 175 years after it was made. This decision upsets long-settled expectations in the ownership of real property in the Counties of Oneida and Madison, New York, and the disruption it is sure to cause will confirm the common-law wisdom that ancient claims are best left in repose. The Court, no doubt, believes that it is undoing a grave historical injustice, but in doing so it has caused another, which only Congress may now rectify.

I respectfully dissent.