On the Notorious RBG and Sherrill

Many of my friends have a great deal of affection for United States Supreme Court Justice Ruth Bader Ginsburg.  My own enthusiasm for the “Notorious RBG,” however, is tempered by a consideration of the 8-1 opinion she wrote in the case of Sherrill v. Oneida Indian Nation in 2005.  Today is the anniversary of that momentous decision.

The Oneida Indian Nation had purchased on the free market lands within the small city of Sherrill, New York, in 1997 and 1998.  The lands in question were once part of the Oneidas’ 300,000 acre reservation. The State of New York had acquired the lands  early in the nineteenth century in a series transactions that clearly violated the terms of the Federal Indian Trade and Intercourse Acts, which stated that purchases of Indian land without a federal commissioner present and without subsequent ratification by the Senate were null and void and of no effect.

With cash from their gaming operations, the Oneidas purchased some of these lands back.  They considered the lands as part of their original reservation, and, exercising their rights as a sovereign nation, they refused to pay taxes to the City of Sherrill.  The town began foreclosure proceedings against the Oneidas.  The federal district court, and then the circuit court, ruled in the Oneidas’ favor.  These rulings, indeed, were entirely unsurprising.  But then came the Supreme Court, and the Notorious RBG.

Writing for the 8-1 majority, she shot the Oneidas down.  “Given the longstanding non-Indian character of the area and its inhabitants, the regulatory authority constantly exercised by New York State and its counties and towns, and the Oneidas’ long delay in seeking judicial relief against parties other than the United States, we hold that the tribe cannot unilaterally revive its ancient sovereignty, in whole or in part, over the parcels at issue.”

Wow.

Too much time had passed since the original wrong, Ginsburg wrote.  Any remedy now, after the passage of time, would be too disruptive.  It would not be fair to the non-Indian land owners in the region who bought their land, she suggested, in good faith.  Thus the Court must prevent “the Tribe from rekindling the embers of sovereignty that long ago grew cold.”

The Oneidas, it is true, own less than 2% of the land in the contested area and make up less than 1% of its population.  Because courts were closed to the Oneidas until 1974, they could not pursue their claims against parties other than the United States.  And the State of New York had exercised regulatory and legislative authority over the entire area even though its authority for doing so was murky at best.  The book by the Syracuse attorney George Shattuck, who helped get the Oneidas’ land claim cases into the court system, and the Syracuse University dissertation by Philip Geier do a nice job of telling much of this story.

I have strong feelings about the Sherrill decision.  We have to deal with the case.  It is law, and it has had consequences. We have to confront it.

Ginsburg’s opinion was based upon a long and flawed history. Much has been made about her decision to draw upon the so-called “discovery doctrine” and Chief Justice John Marshall’s opinion in the 1823 Johnson v. McIntosh case.  There is in this a legal and ideological critique of Ginsburg’s ruling that has some heft, though not as much as some people think.  I would rather challenge this ruling for its willful ignorance of the region’s history.  Upstate New York, and specifically the Oneidas’ aboriginal homeland, she wrote, now had few Indians who owned little land.  Of course.  But this was the result of a historical process through which New York became the Empire State, part of a systematic program of Iroquois dispossession.  The loss of Indian lands in New York State and the advance of white settlement was not the playing out of God’s manifest destiny. It was a crime against the laws of the United States.  The region lost its Native American character because of the actions of the state of New York.

Once an Indian tribe lost its lands, even if those lands were obtained illegally in a manner that violated federal law, and even when the tribe reacquired those lands from willing sellers on the open market, Ginsburg and her colleagues on the Court held that there was no longer any remedy open to the Indians.  The only way to revive sovereignty over lost lands was to have Congress take those lands into trust. The very existence of the Oneida Indian Nation was not enough to do this.  Tribal sovereignty, the Court implied, was a quaint and antiquated notion not worthy of its consideration. The passage of time had made history irrelevant. Let that one sink in for a minute.

And keep in mind, at issue in Sherrill was not an Indian nation’s exercise of criminal jurisdiction over non-Indians.  The tribes had lost that power in 1978.  Nor were we taking about the efforts of a native community to regulate or tax the activities of non-Indians on Indian lands. That, too, the Supreme Court had held was out of bounds.  No. In Sherrill, the issue was whether the Oneida Indian Nation would pay taxes to the City of Sherrill on lands the Nation owned, that stood within the bounds of its historic reservation, and that they originally had lost through illegal transactions.  Where is the disruption?  The Oneidas were dispossessing nobody.  They were imposing their authority over no one.  They were merely buying back lands that had been illegally acquired from them two centuries before.  And Ginsburg thought this was too disruptive.  That it was not fair.  The Oneidas sought not redress for waves of epidemic disease, or the military invasions of their homeland, or dispossession, or diaspora, but merely the chance to purchase the land and rebuild their nation.

Ginsburg accepted the premise that New York had acquired these lands in a manner that violated the law.  She refused to allow any remedy.  And with lower courts applying her ruling even more broadly to dismiss all Iroquois land claims, Ginsburg essentially validated illegal acts and excused the state’s misdeeds.

Ginsburg has written some helpful and valuable opinions in my view, but not in this case.  The Supreme Court is not a promising arena for native peoples to look to for the resolution of their claims.  And Sherrill, it was among the worst. It was a cowardly and cynical decision. Yeah, Justice Ginsburg seemed to say, your lands were taken from you illegally.  But even if the law says those sales are of no effect, there is nothing we can do for you now. It would not be fair.  Not to the white people who make up the majority of the population in the claim area.  History, and the law, are written by the winners.  You are out of luck.

24 thoughts on “On the Notorious RBG and Sherrill”

  1. RBG is a huge disappointment to this liberal and tolerant white man. She is blinded by her past, I guess, and needs to drop some of her pre-digested opinions. Shame on her short-sighted-ness.

  2. I just learned about the Doctrine of Discovery & the impact it had on the People. I was even MORE disgusted when I learned of this recent use of that “document” in this case. AND worse, from a “liberal” voice?

    I believe we need an amendment to the Constitution to make it CLEAR that Women & ALL minorities have equal rights!

    Christianity is NOT our national religion! That needs clarification! White Christian men still have Constitutional bias over ALL other people and faiths.

    “We the People” does not include All of the People.

  3. What if someone decided that her case before the Supreme court was a violation because women were not allowed to vote, and it is unfair to White men. White women didn’t own land, she discriminated against Red land owning men ! RBG, this will be challenged.

  4. Thanks for revisiting this. I too was deeply disappointed by Ginsburg here and this decision is like an uninspiring chain-link fence of mediocrity across her much vaunted reputation and always will be.

  5. “Given the longstanding non-Indian character of the area and its inhabitants”–REALLY? How is the root violation excused and allowed without consequence? I am here. What can I do? The depth and complicated ignorance and willful denial of reality is screaming in my Soul. As I learn about my ancestors, my ancient Celt and Viking ancestors, and the English slave owners of America, and the atrocities that are the foundation of this country, I am ignited to learn, to listen, to offer all I am to the illumination of the holocaust on Nature, that began here, after The Scottish Highland Clearances, after Fornication Under Consent of the King (F.U.C.K.) was intended to breed the Scots out of the British Isles….after The Irish Famine, where all food was exported to England with armed guards at every port, after The Inquisition – 9 million women burned for Loving, called Witches, for healing…for being Nature. The Maori, Aboriginals, Inuit, all tribes, clans, Hawaiian Kingdom…it has continued. Where are the Christian s-called values in these acts of obliteration of precious, sacred Lives, Cultures, Languages, and the Families!!!

    I am here, what can I do?
    What can we do?
    Aloha, Claire

  6. I just read all this. More tears
    I grew up in holland,Michigan. The same town Besty DeVos calls home. I knew her grandfather because he owned the garden store where I got my pet turtles. I married a full blood
    Tlingit from Alaska.
    I now write about what we did to get the land to be
    America upon and with.
    We are all harmed by denying This Truth. The Peace Maker knew women were the ones best to choose qualified men to lead.
    I wish we’d listens to them when we wrote the constitution.
    Too painful to write right now.
    The repercussions of the doctrine of discovery are enormous. Lethal capitalism that has led to climate change killing our Earth Mother and all Her children.
    Annie (pink eagle)

  7. She evolved and changed her stance, as seen in ‘Finding the Way to Indian Country: Justice Ruth Ginsberg’s Decisions in Law Cases.’ by Carole Goldberg. My lawyer son sent it to me.

    1. Thanks for reading Deborah. I think that you are right. She was evolving, and there is some evidence that she regretted the Sherrill decision. Does not change the damage that case did, but we must recognize that people are complicated and their views can evolve. I join you in grieving her passing.

      1. I grew up feral and then adopted into wealthy, Hollywood SICK family, so I know the threats, and life and death decisions that one might have to make to survive on this earth plane. My only hope is that RBG can now act upon TRUTH, and help us here in our facing the reality of the atrocities that are UP NOW for reconciliation, and end this reign of terror. Her decision to deny the rights of First Nations is distrusting, and I am SURE she sees that now, through the lens of reality. May her powers bring justice, whatever reparations can possibly look like and may we restore the beauty that is our way as Humanity united, healing, inspired, in Love. Aloha, Claire

          1. Actually, Marcel, I published that piece on the anniversary of the Sherrill decision several years before Ginsburg’s death. I reposted it because of its relevance after her passing.

  8. Hello, greetings from Turkey. As someone who studes in Native American Studies department, thank you very much for this piece. I find it highly unfair that just because Mrs. Ginsburg was a pioneer woman for the rights of women, it is being neglected that she was ultimately unable to put herself in an intersectional position. After all, she was a white woman. The decisions she concluded with regard to Native Americans demonstrates how she was just another person who possessed a “white” mindset when the question involved the minorities of the country.

    Finally, I’d like to ask you about the source of the picture you used. Could you provide a background as to the context of the picture? I recognize Chief Joseph but not the picture, or others present. Thank you.

  9. Sherrill’s the equivalent of Plessy v. Ferguson. There’s no way it’ll stand; it will have to be overturned. It’s only a matter of time. Possibly too damn long.

    “Sure, theft is OK if you get away with it and keep your opponents out of the courts” is not a precedent which can be maintained. It violates too many principles of every legal system ever invented anywhere on Earth for all of history. Even the doctrine of ownership by conquest is more legitimate.

  10. Whatever one thinks of this decision, the claims by some very dishonest people at Reddit (who are citing this article) that “RBG participated in the genocide against Native Americans” are unwarranted.

  11. Thanks for posting & reposting and for the discussion. I would like to focus on two problems with the Oneida-Sherrill opinion as written by Ruth Bader Ginsburg. Both problems derive from her citation in Footnote #1 — the Doctrine of Discovery.

    As a Jew and a lifelong lover of the U.S. ideals that I learned in 7th grade (1963) and of the Constitution that was supposed to embody those ideals, I see these two problems:

    1. Ruth Bader Ginsburg was a practicing Jew and a strong advocate for civil rights as broadly understood and exemplified by the ACLU. Surely this must have included the clear separation of organized religion (“church”) from the state. How could she even consider citing Catholic doctrine in a Supreme Court opinion? (Yes, it was already a SCOTUS precedent.) Did she ever discuss this with other Jews?

    2. The Doctrine of Discovery was a series of papal edicts written in the 1400s, well before 1776, when the U.S. was founded, and before 1789 when the U.S. Constitution was adopted. How do law schools rationalize this?

    Yes, I believe that English common law is often cited in SCOTUS decisions. Now, at the age of 69, I have the same question. If the U.S. was such a “new” idea, why not a clean break with all human history?

    (Tangentially, I wonder if SCOTUS has ever cited the Great Law of Peace as a precedent in an opinion.)

    As Prof. Oberg notes, there is evidence that RBG regretted her 2005 Oneida decision. So far as I can tell, no specifics have been released by anyone who might know the details. I personally think that two events in late 2016 might have had a direct influence on causing her to rethink the 2005 opinion:

    —The protests at Standing Rock, which opened many U.S. people’s eyes about indigenous sovereignty.
    —The Nov. 3, 2016 article by Steven Newcomb (Shawnee, Lenape), Jews & Doctrine of Discovery.

    As a grassroots activist supporting recent proposals for a U.S. “truth & healing” commission, I would include the Doctrine of Discovery as an important topic to be discussed by any such commission.

    (Of note, there seems to be a growing worldwide movement to address the Doctrine of Discovery as it has affected many indigenous peoples and lands. I certainly support that movement.)

  12. There is no evidence that RBG regretted her decision in Oneida. A few of her supporters have swooped in here to make that claim, yet none of them cite their sources. There is a dubious article that I’ve seen some of her fanclub on Twitter point to, on the “Buffalo Chronicle,” a fake non-reputable online news site, claiming that she regretted her decision in Oneida and that she wanted a Native American to be appointed by Trump as a Supreme Court Justice. There isn’t a single quote from her in that article – just hearsay from people (that the article claims) heard her say it. And the author of the article isn’t listed. None of the articles on the Buffalo Chronicle have an author listed. It’s a sham news site, and it’s disgraceful that her fanclub are pointing to it as so-called “evidence” that she changed her mind. Literally a blatant attempt to rewrite history using misinformation.

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