I've been involved in federal Indian policy since 1998. Ill start by emphasizing some words and phrases.
Indians not taxed infers they should not be taxed but is not in any treaty. The words are in Article One Section Two of the U.S. Constitution referring to congressional apportionment counting the constituents of the district they represent and excluded Indians who were not citizens or lived on reservations and, thus, not taxed. It has nothing to do with taxation itself.
Treaties are the supreme law of the land. Yes they are. They are acts of Congress which can be superseded by any further act of Congress. The Panama Canal Treaty 1903 - 1977 - here one day - gone the next.
As long as the grass shall grow and waters flow was never in a US or NY treaty but was in a Johnny Cash song and a few treaties with the Confederate states during the Civil War. The Confederate States lost the war. Their treaties don't count. It is all Hollywood.
Those sound bites miss the rest of the story.
The Canandaigua Treaty, which I'll work up to in a bit, needs the reat of the story.
Indian law as it affects us is not written by tribal governments, its Constitutional law written in the English language.
It's what governs our lives and I don't think most of the elected Congressmen that swore to uphold it have read it. The powers not granted to the government are reserved to the people.
It and the many treaties that have been written are all inclusive and to be taken in whole at face value.
Laws written by Congress are to adhere to the Constitution and the Supreme Court of the United States rules on such based on the Constitution and sometimes the dictionary because the Constitution is written in English. This was recently made obvious in their ruling to the Narangasset tribe in the Carcieri case explaining what the word "now" meant. Hopefully we all know the word “now” means at the present, at this moment and immediately.
Therefore a tribe not under federal jurisdiction in 1934 did not qualify to apply for land in trust.
None of the New York tribes on their State reservations have ever been under federal jurisdiction because they do not reside on federal lands and none accepted to reorganize under the IRA. The US trust relationship with tribal governments is not the same as having jurisdiction over them.
Especially important is touching on treaties which apply to New York State the courts have already ruled that treaties made by the State when the US was under the Articles of Confederation before the State joined the union are valid because states had the authority to make such treaties on their own.
Remember the importance of the word NOW and that every word is important.
The Sept. 22, 1788 Treaty of Fort Schuyler states
"First, the Oneidas do CEDE and grant ALL their lands to the people of the STATE OF NEW YORK, forever."
[Note the word "cede" means to surrender or give up something such as land, rights, or power, to another country, group, or person. In this case to the State of New York before they joined the union.
The word ALL means every part of, the whole, the complete, the entire.
And the word Forever means eternally, evermore, perpetually, without end.
So the State of NY held TITLE to ALL these lands.] The word Title means ownership, deed, right, claim. Continuing with the treaty ]>
Secondly, OF THE SAID CEDED LANDS the following tract, to wit: and a description of about 300,000 acres follows
[Note the word "of" is a preposition used to indicate material, component parts, substance, or contents. In this case "of the ceded lands" means the 300,000 acres was part of the word ALL and ALSO ceded to the State of New York and NOT a "set aside", which has been misstated in many court arguments. shall be reserved for the following several uses; . . . .
the Oneidas shall hold to themselves and their posterity, forever, for their own use and cultivation, but not to be sold, leased, or in any other manner aliened or disposed of, to others.
[That is because the Oneida tribe did not own the land which NY held title to. ]
Following that a provision allows the tribe to rent lands for no longer than 21 years and the people of the State of New York shall make provision by law to compel the lessees to pay the rents.
[That is because it was the State which owned the land and had jurisdiction over the tribe.]
Thirdly, in consideration of the said cession and grant, the people of the State of New York do, at this treaty, pay to the Oneidas $5,500 initially plus $600 / year forever which has now been 235 years or an additional $141,000.
[That's rather generous considering the US was only paying about four cents an acre for tribal lands at the time. ]
Fourthly, the people of the State of New York may, in such manner as they shall deem proper, prevent any persons, except the Oneidas, from residing or settling on the lands so to be held by the Oneidas.
This section refers twice to "of the CEDED lands".
Again under the Articles of Confederation
The February 25, 1789 Treaty of Albany with the Cayuga tribe. “First: the Cayugas do CEDE and grant ALL their lands to the people of the State of New York , forever.”
Secondly: the Cayugas shall, OF THE CEDED LANDS, hold to themselves, and to their posterity, forever, for their own use and cultivation, but not to be sold, leased, or in any other manner alienated, or disposed of, to others, all that tract of land,
And a description of about 100 square miles follows.
Thirdly: the Cayugas and their posterity, forever, shall enjoy the free rights of hunting in every part of the said CEDED lands, and of fishing in all the waters within the same.
Fourthly: in consideration of the said cession and grant, the people of the State of New York do, at this present TREATY, pay to the Cayugas,
And a payment similar to the Oneida treaty follows.
Fifthly: The people of the State of New York may, at all times hereafter, in such manner, and by such means, as they shall deem proper, prevent any person, except the Cayugas and their adopted brethren the Paanese, from residing or setting on the lands to be held by the Cayugas and their posterity for their use and cultivation, and if any person shall, without the consent of the people of the State of New York, come to reside or settle on the said lands, so CEDED, as aforesaid,
[Once again it SHOULD be obvious that the State held title to all the land and the provision allowed to the tribes was a use right of State owned land. The Cayuga use rights were on State land just as the Oneidas were.
The State entered the union whole with no federal land included.
So we know the treaties were valid and we know the definition of the words now, cede, all, forever and of. See how simple that is?
It does not really get any more complicated. You just have to pay attention. ]
November 11, 1794 Treaty of Canandaigua
ARTICLE 1. Peace and friendship are hereby firmly established, and shall be perpetual, between the United States and the Six Nations. [Well, we hope so. ]
ARTICLE 2. The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New-York,
That bares repeating in their respective treaties with the state of New-York, in their respective treaties with the state of New-York,
and called their reservations, to be their property;
[Note: that's right nice considering it wasn't their property, but belonged to the State.]
and the United States will never claim the same, nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States, who have the right to purchase.
[Note that, "in their respective treaties with the state of New-York" which includes the 1788 and 1789 treaties is NEVER mentioned by the tribes nor media.
, until they choose to sell the same to the people of the United States, who have the right to purchase. Was emphasized by the Second Circuit in the Cayuga land claim but it was never clarified that it was State owned land and in accordance to the Treaties, tribes had no rights to sell the land itself.
The tribes claim this federalized the State owned land and gave them rights which they never had.
First off the State was not even a party to this Treaty so it could not concede land to the US even if it had wanted to.
Secondly the Iroquois Confederacy claim that no land transactions can take place without the consent of all six tribes and the Mohawks were not present.
The only reason the feds made the treaty instead of the State was because the Seneca were waging war in the Ohio Valley and the US was concerned that the other tribes would join them.
The only boundaries acknowledged were referenced to the Seneca recognizing lands ceded to the King of Great-Britain, and
The only recognition to the other tribal issues were in their respective treaties with the state of New-York.
The Seneca ceded to the US the rights to make a wagon road to allow the US to defend itself
And the Six Nations, and each of them, will forever allow to the people of the United States, a free passage through their lands, and the free use of the harbors and rivers adjoining and within their respective tracts of land, for the passing and securing of vessels and boats, and liberty to land their cargoes where necessary for their safety.
In exchange for this the US paid $10,000 plus $4,500 yearly forever
So taking the treaty in its entirety questions why New York State ever paid the Seneca anything to build the NYS thruway.
As per this treaty I'd also believe the Oneida could not change for the use of their marinas. Of course we know they are violating the treaty.
Another Treaty which is used in many arguments is the
Jan. 15, 1838 Treaty of Buffalo Creek
Article 7 states It is expressly understood and agreed, that this treaty must be approved by the President and ratified and confirmed by the Senate of the United States, before it shall be binding upon the parties to it.
That provision is not included in the treaties prior.
That is because THIS treaty dealt with FEDERAL lands west of the Mississippi.
The federal government made provisions to relocate the New York tribes to west of the Mississippi.
Many attorneys representing the State and counties argue that this Congressionally disestablished the (State) reservations. That's rather odd.
Wickipedia: says that since the late twentieth century, the OIN has been a party to land claim suits against the state of New York for treaties and purchases made without ratification by the United States Senate, as required under the US Constitution.
Well, I think you better back up right about here.
Because Congress cannot disestablish that which it never established and could not establish because it was never federal land. Congress never had authority over it.
Consequently, courts have ruled it was not disestablished. I agree with them. It was never established.
To argue that it was disestablished plays into the assumption that it was established in the first place, which it never was because it couldn't be because it was never federal land.
The tribes did not sell the land itself after 1790, they sold the use rights to the State land they were on back to the State, which was the only entity that qualified to purchase them.
So if you know the definitions of the words now, cede, all, forever and of and remember that the Treaty of Canandaigua acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New-York, you understand more than most people do who try to make it complicated.
There were Congressional acts passed in the 1950's which were ACKNOWLEDGMENTS that NYS had and has civil and criminal jurisdiction over its Indian reservations. That's because these are state reservations under the sovereignty of NYS. 25 USC 232 & 25 USC 233.