§§ 232 and 233 expressly confer such jurisdiction on the State of New York over all Indian lands within New York. Thus, none of van Gestel's parade of imaginary horribles involves relief requested by the plaintiffs and almost none constitutes an even indirect consequence of granting relief to the plaintiffs. In short, despite Mr. van Gestel's efforts to interject his cases in the political arena, they simply do not raise nonjusticiable political questions in the legal sense. Furthermore, while citing Judge McCurn's Order of July 23, 1981 in the Oneida case, van Gester's letter conveniently neglects to advise readers that this Order systematically considered and rejected each and every one of the arguments that van Gestel made attacking the justiciability of and the federal court's jurisdiction over the Indians' land claims.

Second, far from rejecting my analysis, Judge McCurn's Order of July 23, 1981 in the pre-1790 Oneida case only seems to have confirmed my position. Had van Gestel read my reply closely (which it appears he did not) he would have seen that I argued that the adoption of the Indian Commerce Clause in the Constitution of 1789 and the enactment of the first comprehensive federal statutory restraint against alienation of Indian land in 1790 marked important legal turning points in these cases because they clearly resolved what previously had been a much murkier constitutional issue regarding the legitimate reach of state power over Indian affairs during the era of the Articles of Confederation. Thus, while I said on page 357 that state land cessions not approved by the federal government were patently illegal after 1790, I was more cautious about pre-1790 claims stating only that they were arguable, i.c., "state land cession practices may even have been illegal between 1781 and 1789 since they seemingly conflicted with Article IX of the Articles of Confederation." (emphasis supplied). Indeed, Judge McCurn did not seem to disagree. He only said, the internal am

biguities [in Article IX, cl. 4 of the Articles of Confederation] which were not resolved during the Confederacy period, may not now be construed as an express delegation to the federal government of the States' sovereign power to extinguish Indian title to land within its borders." (emphasis supplied).

Third, van Gestel belittles the Indians willingness to settle their claims for less land and less money than they might be worth. His rhetoric subtlely suggests that he believes they are misusing the litigation process. Nothing could be further from the truth. They have begun litigation, like any wronged party, asking for all relief to which they believe they are lawfully entitled. To indicate they are willing to settle for less only demonstrates their reasonablesness, not their misuse of judicial process. In short, the Indians in New York today continue to demonstrate the same reasonableness and spirit of cooperation which the noted historian Francis Jennings described in his remarkable book The Invasion of America:

New York State Bar Journal, November, 1981

Regularly the first Europeans were welcomed by natives with gifts of food and tokens of honor until the moment came when the gifts were demanded as tribute and the honors were commanded as homage-a moment that sometimes came very rapidly. At the outset native hostility was never directed against European settlement as such; what made trouble was the European purpose of settling on top.

Id. at 32.

Finally, one might reasonably question the constructiveness of Mr. van Gestel's repeated efforts in the New York Law Journal and the New York State Bar Journal to interject his cases into the political arena by "warnings," which, on close analysis, tum out to be scare tactics. Such efforts will no doubt polarize the parties and the political debate, thereby rendering more difficult the achievement of any constructive settlement of these cases in a fashion satisfactory to all parties. If this is his intent, his rhetoric seems well-calculated to achieving it. If intended, however, such efforts seem to me like a rather strange and inappropriate use of the time and creative energies of an attorney for one of the parties to the litigation.

Sincerely,

Robert N. Clinton

The April, 1981 edition of the New York State Bar Journal contained an article by Allan van Gestel surveying and criticizing the litigation of the - New York Indian land claims. Aside from reviewing the history surrounding the New York Indian land claims, Mr. van Gestel's essay sets forth three separate theses: (1) that the New York Indian land claims present political questions not subject to proper adjudication in federal courts, (2) that the plaintiffs to these cases were not directly harmed by the actions of the defendants' predecessors in interests and, consequently, have no legitimate standing to assert the claims of their tribal ancestors, and (3) that the "innocent land owners" should not be required to defend their claims in court. The tone of Mr. van Gestel's essay also suggests a fundamental non-legal position-an uneasiness about litigating these two hundred year old land claims. This concern apparently stems from the potential which these claims have for frustrating the not unreason

Visiting Professor, Cornell Law School 1980-81; Professor of Law, University of Iowa. B.A. 1968, University of Michigan: J.D. 1971, University of Chicago. Member of the Illinois and lowa bars and of the United States District Courts for the Northern District of Illinois, the Northern and Southern Districts of lowa, the Seventh and Eighth Circuits Courts of Appeal and the United States Supreme Court. The author is also a member of the Board of Editors and a contributor to the revision of Felix Cohen, Handbook of Federal Indian Law (3rd ed. 1981) (Michie/Bobbs-Merrill Publishing) and has written, taught and lectured on federal Indian law issues.

able expectations of the non-Indian claimants; a concern, no doubt, shared by the general public. The essay is so fraught with misunderstandings of the nature of the New York Indian land claims, the constitutional law underlying the political question doctrine, the nature of tribal land tenure and the objectives sought by the plaintiffs in these cases as to require a reply.

Before addressing specifics of the problems with Allen van Gestel's analysis of the New York Indian land claims cases, the writer feels it appropriate to disclose the reasons for his interest in the issue. Unlike Allen van Gestel, I have not been and I am not presently involved in the litigation of the eastern Indian land claims cases either as a party or an advocate. Rather, my interest in the eastern Indian claims is academic. I teach constitutional law and Native American law, have written on the eastern Indian land claims,' have helped organize a symposium on this issue in the Maine Law Review, and have participated at conferences on the subject. While my academic detachment certainly does not necessarily assure greater objectivity, I disclose the reasons for my concern simply to indicate that I have no personal interest in these cases.

While Mr. van Gestel has presented a not unrepresentative survey of the types of historic claims made in the Oneida and Cayuga Cases, his histori

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 (1979).

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cal presentation glosses over a terribly important fact which underlies most of the eastern Indian land claims cases-that the non-Indian claimants are relying on chains of title resting on state Indian treaties or statutory action which clearly violated federal law. Fundamentally, these cases emerge out of a history of constitutional dispute between the federal and state governments over the proper repository for the management of Indian affairs. Thus, the state efforts to secure and validate title to the affected lands from the Indians usually violated then extant and presently enforceable federal laws and were therefore usually invalid under the supremacy clause of the United States Constitution. The constitutional dispute which spawned these cases had its roots during the colonial period. Even before the Revolutionary War, the British had become dissatisfied with the separate management of Indian relations by the colonial governments and had centralized the handling of Indian affairs in agents directly responsible to the Crown between 1755 and 1768.' The colonial governments also recognized the importance of vesting the management of Indian affairs in one central national government. Thus, at the Albany Congress of 1754 Benjamin Franklin proposed a plan of union for the colonies which would have vested almost exclusive of power over the management of Indian affairs in a central authority. However, the Franklin plan was never adopted and the British were never entirely successful in asserting centralized Crown control over Indian affairs.

After the Revolution the newly independent states were left with an underlying constitutional problem: whether the management of Indian affairs, and consequently the regulation of Indian land cessions, properly should be vested in one central national government or separately in the states. The conflicting national pressures on this issue are reflected in Article IX of the Articles of Confederation which provides:

The United States in Congress assembled shall have the sole und exclusive right and power of regulating the trade and managing all affairs with the Indians, not members of the States, pro

2. U.S. Const., art. 6, cl. 2:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and are Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding. (Emphasis supplied)

See generally, F. Prucha, American Indian Policy in the Formative Years, 5-25 (1962); Clinton and Hotopp supra note 1 at 19-23.

vided that the legislative right of any State within its own limits be not infringed or violated. Disputes during the confederation period over the proper construction of this internally inconsistent article played havoc with the efforts by the Continental Congress to centralize the management of Indian relations in the national government. New York, North Carolina and Georgia construed the two provisos in Article IX relating to state authority as reserving complete legislative authority to the states over Indians within their boundaries. The evidence reflects that this construction was inconsistent with the intent of the drafters of Article IX and constituted a minority position. Thus, federal treaty negotiators were appointed and did negotiate treaties with Indian tribes located within the boundaries claimed by New York and North Carolina. Additionally, federal treaty negotiations were attempted with the Creeks in Georgia. Indeed, in the Treaty of Hopewell, November 28, 1785, negotiated between federal treaty commissioners and the Cherokee Nation, the Indians acknowledged in Article III that they were "under the protection of the United States of America, and of no other sovereign whatsoever." These assertions of federal authority in the field of Indian affairs angered some states which saw great profits to be made from securing Indian land at far less than fair market value and from Indian trade. Thus, the dispute over the proper repository of power over Indian affairs was in fact a reflection of a disagreement between persons in control of the state governments who wished to exploit Indian resources for non-Indian benefit and those in the national government who felt a need to pacify the Indian tribes in order to prevent Indian unrest and costly Indian wars.

The states rights advocates had their successes during the confederation period. First, both New York and Georgia negotiated treaties with the Indian tribes without federal approval or participation during this period. Additionally, New York, North Carolina and Georgia protested federal treaty negotiations with the Indian tribes located within these three states and agents of the state of New York in fact disrupted federal treaty negotiations at the Fort Stanwix in 1784. Second, due to the extraordinary consensus required for approval of resolutions in the Continental Congress, the opposition of the states rights advocates prevented the Congress from effectively addressing the problem of fraudulent land cessions and illegal encroach

"Treaty with the Six Nations, Jan. 9, 1789, 7 Stat. 33; Treaty with the Chickawaw, Jan. 10, 1786, 7 Stat. 24; Treaty with the Choctaw, Jan. 3, 1786, 7 Stat. 21; Treaty with the Cherokee, Nov. 28, 1785, 7 Stat. 18; Treaty with the Six Nations, Oct. 22, 1784, 7 Stat. 15.

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ments on Indian land. When the Continental Congress attempted to confront this issue in 1783, it could only secure the required approval for a proclamation which restrained the alienation of Indian land and directed the removal of illegal trespassers in Indian territory "without the limits or jurisdiction of any particular state".

The limitation in the 1783 Proclamation did not, however, reflect of the underlying consensus in the Continental Congress on the proper construction of Article IX of the Articles of Confederation. Rather, it appears that the majority of the delegates properly believed that the Articles vested the sole and exclusive right and power of managing Indian affairs, including Indian land cessions, in the Continental Congress. In the waning days of the Continental Congress the State of Georgia requested the assistance of the national government to deal with the imminent threat of war with the Creeks. This threat had been spawned by three land cession treaties negotiated between the State of Georgia and rump delegations of Creeks who were unrepresentative of the Creek towns as a whole. The federal treaty negotiators had in fact refused to deal with these rump delegations on the ground that they could not speak for the Creek towns. Nevertheless, negotiators for the State of Georgia entered into treaties by which these delegations ceded large portions of Creek land, often tracts not their own. This situation brought the Georgia frontier to the brink of a major Indian war. In response to the Georgia request for assistance, a special committee of the Continental Congress reported:

An avaricious disposition in some of our people to acquire large tracts of land and often by unfair means, appears to be the principle source of difficulties with the Indians. ... The committee conceived that it has been long the opinion of the country, supported by Justice and humanity, that the Indians have just claims to all lands occupied and not fairly purchased from them.... It can not be supposed, the State has the powers [to make war with the Indians or buy land from them] without making [the Indian affairs clause of Article IX] useless... and no particular state can have an exclusive interest in the management of Affairs with any of the tribes, except in some.

uncommon cases.

Interestingly, this report was issued just as the Constitutional Convention had convened to write a new national charter.

The debates at the Constitutional Convention reflect the fact that the framers intended under Article 1, section 8, clause 3 to commit the sole and exclusive power to manage Indian affairs to the federal government, thereby freeing the constitutional charter from the conflicting claims of state power which had plagued the Confederation. Thus, the framers vested the power to regulate "Commerce

$33 Journals of the Continental Congress 457-59 (1787).

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with the Indian tribes" in the Congress. The primary advocate for the inclusion of this power was James Madison who intended to assure that the national government had the sole and exclusive power of handling Indian affairs. Madison wrote in The Federalist, Number 42, praising the Indian commerce clause as follows:

The regulation of commerce with the Indian tribes is very properly unfettered from two limitations in the Articles of Confederation, which rendered the provision obscure and contradictory. The power is there restrained to Indians, not members of any of the States, and is not to violate or infringe the legislative right of any State within its own limits. What description of Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent perplexity and contention in the Federal Councils. And how the trade yet residing within its legislative jurisdiction can be regulated by an external authority without so far intruding on the internal rights of legislation, is absolutely incomprehensible.

Furthermore, in Article I, Section 10 of the Constitution the framers explicitly provided: "No State shall enter into any Treaty, Alliance or Confederation..." Since treaties were the classic mechanism by which both the national government and the states had previously dealt with Indian tribes, this provision also prohibited state action in the field of Indian affairs.

The fact that the framers intended to exclusively vest Indian affairs powers in the federal government is further evidenced by Section 4 of the Indian Trade and Intercourse Act of 1790. This section was the first general federal restraint on alienation of Indian lands. This statutory restraint and its successors form an important basis of many of the eastern Indian land claims. The Act provided: That no sale of lands made by any Indians, or any nation or tribe of any Indians within the United States, shall be valid to any person or persons, or to any State, whether having the right or preemption to such lands or not, unless the same shall be made and duly executed at some public treaty, held under the authority of the United States.

The specific reference to land cessions taken by states contained in the 1790 Act constitutes an explicit congressional statement forbidding any further state action taking Indian land without clear federal approval. Despite this explicit statement, the State of New York went forward and continued its prior practice of state land cessions even after warnings by the federal government to the Six Nations Iroquois Confederation and to the State of New York of the illegality of the practice. Even a passing familiarity with the language and intent of the supremacy clause of Article VI, section 2 of the

*Act of July 22, 1790, ch. 33, § 4, I Stat. 137, codified as amended 25 U.S.C. § 177.

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United States Constitution would indicate that such state practices of taking cessions of land from Indian tribes in contravention of an explicit federal statute were patently illegal after 1790 and that the state land cession practices may even have been illegal between 1781 and 1789 since they seemingly conflicted with Article IX of the Articles of Confederation.

Allan van Gestel's essay also ignores the inconsistency between federal and state treaty practices which were occurring simultaneously during this period. For example, Article II of the Treaty of Konondaigua, entered into between the United States and the Six Nations Confederation of the Iroquois, specifically guaranteed the existing reservations of the Oneida, Onondaga and Cayuga Nations, and promised that the people of the United States would 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 reservation shall remain theirs, until they chose to sell the same to the people of the United States, who have the right to purchase."' This provision paralleled and supplemented the statutory restraint against alienation by providing that the Indians could only cede their land "to the people of the United States", i.e. the federal government. Despite this explicit federal treaty statement reserving to the United States government the exclusive right to negotiate with the Indian tribes, the State of New York continued to enter into illegal non-federally approved treaty negotiations with the affected tribes. For example, the Cayuga claim now under litigation involves state treaties in 1795 and 1807 by which New York acquired all of the 64,000 acre reservation that the federal government had confirmed to the Cayugas in 1794 by the Treaty of Konondaigua. Again, simple principles of federal treaty supremacy should indicate the patent illegality of such transactions without explicit federal approval.

While Mr. van Gestel notes the unavailability of defenses of adverse possession, statute of limitations, laches, or estoppel by sale in the New York land claims cases, he ignores the reason for this result the fact that federal law requires explicit congressional action to extinguish Indian land claims. These defenses, usually based on state law, simply cannot operate without congressional approval to divest the federally-protected title to land of Indian tribes, many of whom were unfamiliar with non-Indian court structures and for long periods were both practically and legally incapacitated from asserting their claims."

"Treaty with the Six Nations, Nov. 11, 1794, 7 Stat. 44. "Mohegan Indian Tribe v. Connecticut, 635 F.2d 612 (2d Cir. 1980); Oneida Indian Nation v. County of Oneida, 434 F. Supp. 527, 541–44 (N.D. N.Y. 1977); Schaghticoke Tribe v. Kent School Corp., 423 F. Supp. 780, 783–85 (D. Conn. 1976); Narragansett Tribe v. Southern R.1. Land Dev. Corp., 418 F. Supp. 798, 804-06 (D.R.J. 1976). As early as 1729, Pennsylvania had recognized that adverse New York State Bar Journal, August, 1981

Mr. van Gestel also suggests that the eastern Indian land claims cases constitute nonjusticiable political questions based solely on the age and size of the claims and the disruptive effects of any potential remedy. This argument indicates either a profound misunderstanding of the political question doctrine or a willingness to relegate the Indians to the non-citizenship status which frequently incapaciated them from enforcing their legal rights in American courts during the late 18th and 19th centuries. In assessing the soundness of Mr. van Gestel's suggestion, it is important to keep in mind that most of the New York claims involve vested property rights specifically recognized and guaranteed by federal treaty. Under existing constitutional doctrine such property rights represent vested property interests fully protected by the taking clause of the fifth amendment to the United States Constitution. Additionally, while some of the eastern Indian land claims are based only on aboriginal title, a form of Indian land tenure not protected under the fifth amendment, these claims also involve a form of enforceable property right good as against all parties except the United States." Thus, acceptance of Mr. van Gester's suggestion that the Indian land claims involve a nonjusticiable political question would deprive the plaintiffs of any judicial forum for enforcing their vested property rights.

The political questions doctrine simply has never operated to preclude plaintiffs from enforcing their own vested property interests merely based on the complexity of the litigation. For example, in the classic case of Marbury v. Madison, Chief Justice Marshall said, "... where a specific duty is assigned by law, and individual rights depend on the performance of that duty, it seems equally clear that, that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy."" Thus, where another branch of the federal government has not acted to extinguish the property rights in question, the political question doctrine has never barred resort to courts to enforce such rights.

This fundamental principle of American con⚫stitutional jurisprudence has in no way been undermined by the recent decisions on the political

(Continued on page 372)

possession should not be a defense against possessory interests of Indian tribes by providing that in forcible entry and detainer actions brought to enforce the Indian title "no Length of Possession shall be a Plea against such Prosecution. Act of October 14, 1729 set forth in C. Royce, Indian Land Cessions in the United States 997–89 (Arno Press reprint ed. 1971). See generally. Clinton & Holopp, supra note 1 at 84-87.

United States v. Sioux Nation, 100 S. Ct. 2716 (1980); United States v. Shoshone Tribe, 304 U.S. 111 (1938); United States v. Klamath and Moadoc Tribes, 304 U.S. 119 (1938); Shoshone Tribe v. United States, 299 U.S. 476 (1947).

19 See, eg., United States v. Sante Fe Pacific R. Co.. 314 U.S. 343 (1941).

" 5 U.S. (1 Cranch) 137, 166 (1803).

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