Thomas Outraged in Dissent to Oneida Land Dispute

WASHINGTON (CN) — Calling it absurd that judges have supported a decision by the federal government to take New York land into trust for a tribe of Native Americans,

U.S. Supreme Court Justice Clarence Thomas (Charles Dharapak, Associated Press)

Supreme Court Justice Clarence Thomas said Monday his colleagues turned down a worthwhile case.

A group called Upstate Citizens for Equality brought the underlying challenge after the federal government took 13,000 acres of central New York property into trust for the Oneida Nation, one of Five Nations of the Iroquois Confederacy.

Joining forces with six private citizens and the New York towns of Vernon and Verona, the challengers fought the government’s action as an unconstitutional exercise of the Indian Reorganization Act.

Justice Thomas complained in a dissent Monday after the Supreme Court shut the door on the case without comment, refusing to consider a Second Circuit decision that sided with the government,

An appointee of former President George H.W. Bush, Thomas complained that his colleagues are missing an opportunity to right precedents on the Indian Reorganization Act that have gone awry.

“Asserting plenary power, Congress authorized the Secretary to take 13,000 acres of New York and to declare it sovereign Oneida territory,” Thomas wrote. “It did so even though the land had been under New York’s sovereign control for more than two centuries. And it did so even though restoring tribal sovereignty over the land would ‘seriously burden the administration of state and local governments’ and would adversely affect landowners neighboring the tribal patches.’”

Thomas said the extension of Supreme Court precedents would shock the Framers, hypothesizing that Congress could wield such power to strip a state of almost all sovereign power over land it would give to Indians.

“This means Congress could reduce a state to near nonexistence by taking all land within its borders and declaring it sovereign Indian territory,” Thomas continued.

“When our precedents permit such an absurd result, something has gone seriously awry,” the opinion concludes. “It is time to fix our error. We should have granted certiorari to reexamine our Indian Commerce Clause precedents, instead of standing idly by as Congress, the executive, and the lower courts stray further and further from the Constitution. I respectfully dissent from the denials of certiorari.

Frank Kowalkowski, of the firm Von Briesen & Roper in Green Bay, Wisconsin, represents the towns of Vernon and Verona. 

Reacting to the denial of certiorari, Kowalkowski said that the ever-growing application of the Indian Reorganization Act is causing hardships on state governments that cannot be overstated.

“Justice Thomas’ strong dissent aptly demonstrates why the town believed United States Supreme Court review was warranted,” Kowalkowski said in an email.

“It is truly unfortunate that a majority of the court did not agree that it was time for a detailed analysis of the Indian Commerce Clause and the laws enacted by Congress under its purported authority,” the attorney added.

David Brown Vickers, who represents Upstate Citizens for Equality, had a similar reaction, saying the expanding precedent empowers “tribes and their financiers to do end runs around all state laws and regulations.”

“The federal government has created a new two-tiered system that will render all nontribal Indians mere second-class citizens in a brave new world controlled by unelected federal bureaucrats and tribal leaders,” said Vickers, of Fayetteville, New York.

Applauding what he called a “great dissent” by Thomas, Vickers said the justice’s rebuke “should be required reading by anybody who still values the concept of sovereign states.”

The group Citizens Equal Rights Foundation had a dog in this fight as well, having filed an amicus brief and launched a separate case with Central New York Fair Business and the Citizens Equal Rights Association.

Lana Marcussen, an attorney for the foundation, said the dissent by Justice Thomas will guide a future challenge. “We hope that the community in and around the affected area will be emboldened by Judge Thomas and support a new suit challenging tribal and federal jurisdiction over the area taken into trust,” Marcussen said in an email.

Representatives for the government have not returned an email seeking comment.

The Oneida case was among dozens to which the Supreme Court denied certiorari on Monday.

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