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.
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.
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.
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
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
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.
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
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)).
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.
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.
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
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).
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.
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).
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.
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.
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.
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
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
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,
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.
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,
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.
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
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).
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.
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.
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.
We conclude, therefore, that the Oneidas' claim is not barred by the political question doctrine.
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
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.
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.
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,
It is so ordered.
JUSTICE STEVENS concurs in the judgment with respect to No. 83-1240.
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).
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.
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.
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
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,
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.
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.
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.
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 Legislature
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
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
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.
As in Felix and Wetzel, the land conveyed by the Oneida in 1795 has been converted from wilderness to cities, towns,
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.
Given their burden of explaining nearly two centuries of delay in the prosecution of this claim, and considering the
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,
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 doctrine
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.
Secondly, neither the statutes themselves,
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.
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.
I respectfully dissent.
"[D]iscovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession.
"The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. . . .
"The rights thus acquired being exclusive, no other power could interpose between [the discoverer and the natives].
"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 v. McIntosh, 8 Wheat. 543, 573-574 (1823).
"Here, then, is the security for the remainder of your lands. No State, nor person, can purchase your lands, unless at some public treaty, held under the authority of the United States. . . .
"If . . . you have any just cause of complaint against [a purchaser] and can make satisfactory proof thereof, the federal courts will be open to you for redress, as to all other persons." 4 American State Papers, Indian Affairs, Vol. 1, p. 142 (1832).
Petitioners make much of the fact that the 1793 Act contained criminal penalties in arguing that the Act pre-empted common-law actions. In property law, however, it is common to have criminal and civil sanctions available for infringement of property rights, and for government officials to use the police power to remove trespassers from privately owned land. See 5 R. Powell, Real Property ¶ 758 (1984).
"As it is now, the Indians, as we know, are wards of the Government and, therefore, the statute of limitations does not run against them as it does in the ordinary case. This [proviso] will preserve their rights so that the statute will not be running against them concerning those claims that might have arisen before the passage of this act." 96 Cong. Rec. 12460 (1950).
"Although there is a formal repeal of the old by the new statute, still there never has been a moment of time since the passage of the [old] act . . . when these similar provisions have not been in force. Notwithstanding, therefore, this formal repeal, it is . . . entirely correct to say that the new act should be construed as a continuation of the old . . . ."
Accord, Steamship Co: v. Joliffe, 2 Wall. 450, 458 (1865); Great Northern R. Co. v. United States, 155 F. 945, 948 (CA8 1907), aff'd, 208 U.S. 452 (1908).
"[T]he said Indians do cede release and quit claim to the people of the State of New York forever all the lands within their reservation to the westward and southwestward of a line from the northeastern corner of lot No. 54 in the last purchase from them running northerly to a Button wood tree . . . standing on the bank of the Oneida lake." Treaty of June 1, 1798, reproduced in Ratified Indian Treaties 1722-1869, National Archives Microfilm Publications, Microcopy No. 668 (roll 2) (emphasis added).
The 1802 Treaty provided:
"All that certain tract of land beginning at the southwest corner of the land lying along the Gennesee Road, . . . and running thence along the last mentioned tract easterly to the southeast corner thereof; thence southerly, in the direction of the continuation of the east bounds of said last mentioned tract, to other lands heretofore ceded by the said Oneida nation of Indians to the People of the State of New York." Treaty of June 4, 1802, reproduced in 4 American State Papers, Indian Affairs, Vol. 1, p. 664 (1832) (emphasis added).
"For eleven years after [the minor] became of age he made no objection to the proceedings, or by any act indicated his intention to disaffirm the sale or deed . . . ; and [only then] he gave to the grantors of the [plaintiffs] a deed of his interest in the . . . claim. In the meantime, the property had greatly increased in value by the improvements put upon it by the purchaser . . . . Under these circumstances, . . . the long acquiescence of the minor, after he became of age, in the proceedings had for the sale of his property, was equivalent to an express affirmance of them, even were they affected with such irregularities as, upon his prompt application after becoming of age, would have justified the court in setting them aside." Id., at 504-505.
See also Irvine v. Irvine, 9 Wall. 617 (1870); Tucker v. Moreland, 10 Pet. 58 (1836). See generally 1 L. Jones, Real Property §§ 24-26 (1896); 1 J. Kent, Commentaries on American Law 252-255 (8th ed. 1854); 1 R. Powell, Real Property ¶ 125, p. 483 (1984); 6 G. Thompson, Real Property § 2946, pp. 30-31; § 2951, pp. 63-64 (1962); cf. 2 J. Pomeroy. Equity Jurisprudence § 965 (1886).
Similar doctrines have been applied in the Indian area. For example, in United States v. Santa Fe Pacific R. Co., 314 U.S. 339 (1941), the Court held that the acceptance by the Walapais Indians of reservation lands "must be regarded in law as the equivalent of a release of any tribal rights which they may have had in lands outside the reservation. They were in substance acquiescing in the penetration of white settlers on condition that permanent provision was made for them too. In view of this historical setting, it cannot now be fairly implied that tribal rights of the Walapais in lands outside the reservation were preserved. . . . Hence, acquiescence in that arrangement must be deemed to have been a relinquishment of tribal rights in lands outside the reservation and notoriously claimed by others." Id., at 358. See also Mitchel v. United States, 9 Pet. 711, 746 (1835) ("Indian possession or occupation was considered with reference to their habits and modes of life; their hunting-grounds were as much in their actual possession as the cleared fields of the whites; and their rights to its exclusive enjoyment in their own way, and for their own purposes were as much respected, until they abandoned them, made a cession to the government, or an authorized sale to individuals. In either case their right became extinct . . .") (emphasis added); Williams v. City of Chicago, 242 U.S. 434, 437 (1917) ("If in any view [the Pottawatomic Nation] ever held possession of the property here in question, we know historically that this was abandoned long ago and that for more than a half century [the tribe] has not even pretended to occupy either the shores or waters of Lake Michigan within the confines of Illinois") (emphasis added). Cf. H. R. Doc. No. 1590, 63d Cong., 3d Sess., 11 (1915) (The Oneida sold most of their lands to the State, and divided the remaining lands in severalty; "as a tribe these Indians are known no more in that State").
In deciding territorial disputes arising under this Court's original jurisdiction, similar principles have frequently been applied:
"No human transactions are unaffected by time. Its influence is seen on all things subject to change. And this is peculiarly the case in regard to matters which rest in memory, and which consequently fade with the lapse of time, and fall with the lives of individuals. For the security of rights, whether of states or individuals, long possession under a claim of title is protected." Rhode Island v. Massachusetts, 4 How. 591, 639 (1846).
See also California v. Nevada, 447 U. S., at 132 ("If Nevada felt that those lines were inaccurate and operated to deprive it of territory lawfully within its jurisdiction the time to object was when the surveys were conducted, not a century later"); Ohio v. Kentucky, 410 U. S., at 648-651; Indiana v. Kentucky, 136 U.S. 479, 509-510 (1890).
"That an action to recover damages resulting from a trespass on lands of the United States; . . . may be brought within six years after the right of action accrues, except that such actions for or on behalf of a recognized tribe, band, or group of American Indians, . . . which accrued [prior to the date of enactment of this Act but under subsection (g) are deemed to have accrued on the date of enactment of this Act] may be brought on or before sixty days after the date of the publication of the list required by . . . the Indian Claims Act of 1982: Provided, That, for those claims that are on either of the two lists published pursuant to the Indian Claims Act of 1982, any right of action shall be barred unless the complaint is filed within (1) one year after the Secretary of the Interior has published in the Federal Register a notice rejecting such claim . . ." (emphasis added).
The Court relies on the word "any" in the final clause of the statute and construes this as implicitly providing a federal statute of limitations for causes of action brought by Indian tribes on their own behalf, notwithstanding the unmistakable references throughout the statute and its legislative history to claims brought by the United States on behalf of Indians. See, e. g., H. R. Rep. No. 96-807, p. 2 (1980); H. R. Rep. No. 92-1267, pp. 2-3 (1972); S. Rep. No. 1328, 89th Cong., 2d Sess., 8-9 (1966); 126 Cong. Rec. 3289 (1980) (remarks of Sen. Melcher); id., at 3290 (remarks of Sen. Cohen); id., at 5745 (remarks of Rep. Clausen); 123 Cong. Rec. 22499 (1977) (remarks of Rep. Cohen); id., at 22507 (remarks of Rep. Dicks); id., at 22509 (remarks of Rep. Studds); id., at 22510 (remarks of Rep. Udall); ibid. (remarks of Rep. Yates). Even if the Court's construction were correct, it does not establish that Congress intended to revive previously barred causes of action.
As for § 2415 and its various amendments since 1966, the record is barren of any reference to revival. At most, Congress was of the view that nothing in § 2415 would "preclude" actions by the tribes themselves. See, e. g., 123 Cong. Rec. 22499 (1977) (remarks of Rep. Cohen). It may very well be that in view of the hospitable treatment that these ancient claims received in the lower federal courts, some Members of Congress may have assumed that there was no time bar to such actions. In the absence of legislation, however, the assumptions of individual Congressmen about the status of the common law are not enacted into positive law. In enacting the Indian Claims Limitation Act of 1982, Pub. L. 97-394, 96 Stat. 1976, note following 28 U. S. C. § 2415, Congress simply provided a procedure for exhausting the Federal Government's responsibility, as trustee, for prosecuting meritorious claims — leaving this Court ultimately to decide whether claims brought by the tribes themselves were still alive.